# RA TILAL BHANJI MITHANI v. THE STATE OF MAHARASHTRA AND OTHERS

- **Citation:** [1973] 1 S.C.R. 118
- **Court:** Supreme Court of India
- **Decided:** 1972-04-11
- **Case number:** Cr!. Mi~c. Petition No. 1260 of 1971
- **Bench:** S. M. SrKRI, J. M. Shelat, A. N. Ray, I. D. Dua, A H. R. Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ra-tilal-bhanji-mithani-v-the-state-of-maharashtra-and-others-5740
- **Pages:** 8

## Headnote

B
Code of Criminal Procedure (Act S of 189S) ss. S04 and SOSAScope of.
Practice and Procedure-Appeal
disposed of-Power of Supreme
Court to extend time for return of Commission.
The appellant, along with others, was charged with offence under
s. 1208, l.P.C. read withs. 167(SI) of the Sea Customs Act, IS7S, and
~. S of the Imports and Exports Control Act, 1947, and the prosecution
had to exan1ine- certaiP witnesses in West Germany on Commission.
The
High
Court
order<od
tho
i.ssue
of
the
Commission.
The
appellant appealed to this Court agrunst the order and the appeal was
qonfined to the payment of expenses to his Counsel.
This Court allowed
the appeal and ordered payment of the expenses by
the p'rosecution.
This Court allowe<.I the appeal and ordered payment of the expenses by the
prosecution.
WhiJe the appeal was pending and thereafter, this Court
extended the time for return of the Commission.
On a further application by the prosecution for extension of time,
HELD : (I) the provisions contained in ss. S04 and SOSA, Cr.P.C.
contain complimentary provisions for reciplrocal arrangements
between
the Government of our Country and the Government of a foreign Country for Commission from Courts in India to specified courts in the foreign
Country for examination of witnesses. residing in the foreign
Country
and similarly for Commissions from specified courts in the foreign Country f·or examination of witnesses residing in our Country.
In the present
case, no notification under s. SOSA has been published specifying the
Courts in \Vest Germany by whom commissions for examination of witnesses residing in India may be issued. The notification under s. 504
was isSued in anticipation Of an arrangement between the Governments
of India and West Germany, and was not baBed upon any existing reciprocal complete arrangement between the Government of India and the
Government of West· Germany for examination of witnesses residing
in
West Germany.
When this Court finds that there are no arrangements
in existence within the meaning of "· S04 and SOSA, Cr.P.C. this Court
will not make any order. [124A-G, F-H]
(2) Even after the disposal of the appeal, this Court may, if it
welre so inclined ·pass orders for
extension /of time as it would only be
supplemental to and in continuation of the time originally fixed
by this
Court. [12SA-BJ

## Text

118
RA TILAL BHANJI MITHANI
v.
THE STATE OF MAHARASHTRA AND OTHERS
April 11, 1972
[S. M. SrKRI, C.J., J. M. SHELAT, A. N. RAY, I. D. DUA AND
A
H. R. KHANNA, JJ.]
B
Code of Criminal Procedure (Act S of 189S) ss. S04 and SOSAScope of.
Practice and Procedure-Appeal
disposed of-Power of Supreme
Court to extend time for return of Commission.
The appellant, along with others, was charged with offence under
s. 1208, l.P.C. read withs. 167(SI) of the Sea Customs Act, IS7S, and
~. S of the Imports and Exports Control Act, 1947, and the prosecution
had to exan1ine- certaiP witnesses in West Germany on Commission.
The
High
Court
order<od
tho
i.ssue
of
the
Commission.
The
appellant appealed to this Court agrunst the order and the appeal was
qonfined to the payment of expenses to his Counsel.
This Court allowed
the appeal and ordered payment of the expenses by
the p'rosecution.
This Court allowe<.I the appeal and ordered payment of the expenses by the
prosecution.
WhiJe the appeal was pending and thereafter, this Court
extended the time for return of the Commission.
On a further application by the prosecution for extension of time,
HELD : (I) the provisions contained in ss. S04 and SOSA, Cr.P.C.
contain complimentary provisions for reciplrocal arrangements
between
the Government of our Country and the Government of a foreign Country for Commission from Courts in India to specified courts in the foreign
Country for examination of witnesses. residing in the foreign
Country
and similarly for Commissions from specified courts in the foreign Country f·or examination of witnesses residing in our Country.
In the present
case, no notification under s. SOSA has been published specifying the
Courts in \Vest Germany by whom commissions for examination of witnesses residing in India may be issued. The notification under s. 504
was isSued in anticipation Of an arrangement between the Governments
of India and West Germany, and was not baBed upon any existing reciprocal complete arrangement between the Government of India and the
Government of West· Germany for examination of witnesses residing
in
West Germany.
When this Court finds that there are no arrangements
in existence within the meaning of "· S04 and SOSA, Cr.P.C. this Court
will not make any order. [124A-G, F-H]
(2) Even after the disposal of the appeal, this Court may, if it
welre so inclined ·pass orders for
extension /of time as it would only be
supplemental to and in continuation of the time originally fixed
by this
Court. [12SA-BJ
CRIMINAL APPELLATE JURISDICTION :
Cr!. Mi~c. Petition
No. 1260 of 1971.
c
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(Application by respondents Nos. 1 and 2 for extension of time
upto 31st March, 1972 for the return of the Commission for examiH
nation of some witnesses in West Genn~ny).
l. N. Shroff, for the appellant.
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R. B. MITHANI V. STATE (Ray, J.)
11~
Jagdish Swarup, Solicitor-General of lndia,R. H. Dhebar and
S. P. Nayar, for respondents Nos. 1 and 2.
R. P. Kapur, for respondents Nos. 3 and 4.
The Judgment of the ·court was deliveyed by
Ray, J.
There are two matters before this
Court.
One is
an application of the Stltte of Maharashtra and the Assistant Collector of Customs, Bombay in Criminal Appeal No. 117 of 1970
for extension of time upto 31 March, 1972 for the return of the
Commission for examination of some witnesses in West Germany
in c;rirnirial Case No. 42/CW of 1%2 pending in the Court of
the Presidency Magistrate, Esplanade Courts, Bombay. The other
is a writ petition of Mithani ~hallenging the alleged arrangement
mentioned in communication dated 13 July, 1971 from the Indian
High Conunissioner in London to the External Affab Ministry,
Government of India for examination
of witnesoos
in West
Germany as infraction of the provisions of section 504 of the
Code of Criminal Procedure and as violative of the pei:itioner's
fundamental rights under Article 14 of the Constitution.
One Ram Lal Laxmi Dutta Nanda and 7 others including
Mithani were alleged to have committed offences under section
120-B of the Indian Penal Code read with section 167(81) of the
Sea Customs Act, 1878 and section 5 of the Imports and Exports
Control Act, 1947 some time between the years 1959 to 1960.
The gist of the offences committed is import of goods of a contraband nature of the value of Rs. 15 lakhs and above.
Mithani was arrested. on 11 Ma,y, 1960 and was on bail. Ram
Lal Laxmi- Dutta Nanda died on 15 September, 1967.
The prosecution filed complaint against Mithani and 6 others
on 1 April, 1961.
The hearing of the case started before the
Chief Presidency Magjstrate, Bombay on 12 February, 1962.
Several witne<se's were examined. On 21 December, 1962 charges
were framed. The charges inter alia were that goods were imported without licence. The goods were alleged to be of a contraband
nature.
The prosecution case in short was this. 24 consignments were
brought into India. The last 4 consignments were seized. Mithani
is not charged in respect of those 4 consignments. In regard to
the 8 of the remainin_g 20 consignments the prosecution alleged
that 10 Verlade_scheins which are said to be Loading Sheets and
B
.which came to the possession of the prosecution gave the description of contraband goods. The Bills of ~ading in respect of those
8 consignments however showed tlie gOodS as covered by the
licences.
'
120
SUPREME COURT REPORTS
[1973] l S.C.k.
Between March 1962 and December 1962 the prosecution
examined about 200 witnesses before the Magistrate.
On 24
July, 1962 the Magistrate held the Verladescheins inadmissible
in evidence under the Indian Evidence Act and Commercial Docu-
.ments Evidence Act, 1939. By another order dated 6 December,
1962 the Magistrate however held that 9 out of I 0 verladescheins
were admissible in evidence.
On 21 Decernber, 1962 on the
basis of admissibility of 9 ver!adescheins in evidence the Magistrate framed charges. The charges framed were fewer than those
claimed by the prosecut!ion.
The prosecution in the month of February,. 1963 went up
on revision before the Bombay High Court against admission of
only 9 and not all 10 Verladescheins and also against framing of
fewer charges than that claimed by the prosecution.
On 20
August, 1964 the Bombay High Court upheld llhe earlier order
of the Magistrate that 10 verladescheins sheets were inadmissible.
The High Court remanded the case to the Magistrrte for reconsidering the charges.
The prosecution filed petit,ion for special leave to appeal to
this Court against the order of the Bombay High Court.
The
petition for special leave was dismissed.
The prosecution thereafter obtained an order from the Magistrate to take photostat copies of certain documents. One of the
accused challenged that order of the Magistrate in a revision
application before the Bombay High Court.
The Bombay High
Court on 4 October, 1966 gave the prosecution time up to 4
January, 1967 for calling the foreign witnesses. The prosecution
failed to do so within the appointed time.
The prosecution in the month of January, 1967 filed an application before the Bombay High Court for cancellation of the bail
of Mithani on the ground that he had exllended threat to the
German wit11esses. The Bombay High Court on 6 March, 1967
cancelled the bail of Mithani and directed him to surrender to
judicial custody on or ~efore 13 March, 1967.
Mithani surrendered to jail custody on 13 March, 1967,
Mithani filed a petition ·for special leave to appeal against the
order of the Bombay High Coprt dated 6 March, 1967 cancelling
the bail.
Mithani obtained special leave.
The appeal was dismissed on 4 May, 1967. This Comt however gave time to the
prosecution till 26 June 1967 for examining the German witnesses.
The prosecution took no steps to examine the German witnesses.
The prosecution applied in the month of July, 1967 to
·the Magistrate for the issue of a Commission to examine German
witnesses nt Hamburg or Berlin or London.
The Magistrate
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R. B. MITHANI V. STAT.:'. (Ray, J.)
121
!
.....
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rejected the application.
The prosecucion filed a revision application before tlie Bombay High Court against the Qrder dated
8 August, 1967 passed by the Magistrate rejecting the prosecution application for examination of witnesses on
Commission.
The l!igh Court dismissed the revision application.
"'
The prosecution came up to this Court for appeal by special
;B
leave against the order of the Bombay High Court dated 9 August,
1968. The prosecution withdrew the special leave petition.
By an order dated 26 February, 1969 the Magistrate
discharged Mithani and two other accused.
The Magistrate however .directed that the remaining 4 accused No. 1, 4, 5 and 6 be
c
tried according to law.
In the month of June, 1969 the prosecution filed a revision
application in the Bombay High Court challenging the order
dated 26 February, 1969 whereby the Magistrate had discharged
Mithani and the other two accused.
The prosecution also filed
n
in the Bombay High Court an application for the issue of Com·
mission· to West Germany for examination of German witnesses.
Jn support of that application the prosecution relied upon a notification dated 9 September, 1969 issued by the Central Government under section 504(3) of the Code of Criminal Procedure.
Mithani has challenged tl1e validity of that notification in the writ
petition.
,E
The I1ombay High_ Court on 17 December, 1969 allowed the
application of the prosecution and ordered the issue of the Commission to the Fedi;ral Republic of Germany for the examination
of German witnesses.
F
Mithani on 25 August, 1970 obtained special leave to appeal
against the judgment and order of the Bombay High Court dated
17 Deoember, 1969. The special leave was limited to the question
of non-allowance of air fare ·and the daily expenses of Mithani's
lawyer.
Mithani's appeal is Criminal Appeal No. 117 of 1970.
It may be stated here that the Bomaby High Court granted the
prosecution time first up to 31 May, 1970 a.nd then up to 31
'G
August, 1970 for the return of the Commission. The third exten·
sion of time by the Bombay High Court was up to 16 Septen1ber
1970.
'
. This .ci:urt on 4 February, 1971 allowed Mithani's appeal
bemg Cnmmal Appeal No. 117 of 1970.
This Court directed
H
the prosecution to pay to Mithani the tourist air fare for one
lawyer and u sum of Rs. 100/ • per day for the expenses of the
lawyer of Mithani engaged in exarqining witnesses
in
West
Germany.
9-!218S tPCl/72
\
11.
•
122
SUPREME COURT REPORTS
[1973] l S C.R.
,"\-feanwhile on 14 September, 1970 and again on 10 December, 1970 tjle prosecution obtained from this Court extensioh
praying for extension of time first upto 31 December, 1970 and
1then upto 31 March 1971 for the return of the Commission. On
18 March, 1971 the prosecution applied for another extension of
time for the return of the Commission from 31 March, 1971 to 31
August, 1971. This Court however was pleased to gram extension of time up to 31 Oetober 1971.
On 14 October, 1971 the prosecution filed the present petition
praying for extension of time from 31 October, 1971to31 March.
1972 for the return of the Commission.
Mithani opposed any
extension.
On 27 October, 1971 this Court directed the Government to
file a better affidavit in the criminal application indicating the
step, taken for the return of the Commission. The Government
filed an affidavit affirmed by P. K. Kapur on 9 November, 1971.
The affidavit filed by the Government revealed two important
fuels.
First, from the year 1969 when the Government made
application for exami_nation of witnesses abroad the Government
always suggested that there was in existence an
arrangement
between the Government of India and the Government of the
Federal Republic of West Germany for examination of witnesses
residing in ithe Federal Republic of West Germany in relation to
matters in courts in India. The Government in that behalf relied
on a notification dated 9 September, ~ 969 issued by the Central
Government. In that notification it is recited "whereas arrangements have been_ made by the Central Government with the
Government" of the Federal Republic of West Ger~any for taking
the evidence of the witnesses in the FederaJ Republic of West
Germany in relation to criminal matters in couct.s in India, the
Central Government in pursuance of sub-section (3) of section
504 of the Code of Criminal Procedure hereby directs that commissions from courts in India for the examination of witnesses in
the Federal Republic of West Germany shall be issqed in the form
annexed thereto, to the courts" mentioned in the notification.
The second matter of importance brought out by the affidavit is
that in fact no arrangement between the Government of India and
the Government of the Federal Republic of West Germany for
the examination of witnesses residing in West Germany was finalis- .
ed.
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The other features in the Government affidavit are these. The
memorandum dated 6 September, 1969 written by the Under
Secretary to the Government of India, Ministry of External
H
Affairs to the Director of Revenue Intelligence ,showed that un-
"'···
less letters were exchanged betwecn the Government of India and
the WeS'I: German Republic establishing reciprocal arrangements
A
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R. B. MITHANI V.
0STATE (Ray, /.)
123
for the examination of witnesses in criroipal cases
notifications
under sections 504(3) and SOSA of the Code of Criminal Procedure could not be issued. The notification on 9
Septembct,
1969 was issued it seems in anticipation of an arrangement between the Government of India and the West German Republic.
It is established on the affidavit evidence that no arrangement hhs
yet been entered into. Negotiations have been going on for such
arrangement
On 17 December, 1970 there is a note of the
Government of India on the specific subject of the present case and
it is recorded there that a formal agreement for
entering into
reciprocal arrangements with West Germany for the examination
of witnesses in crin:tinal cases has not yet been entered into.
In
the month of April, 1971 the Ministry of External Affairs wrote
to the Indian Embassy in West Germany that 'the letter of request
may therefore be kept with you for the time being, and may be
forwarded to the West German authorities, as soon as reciproc<tl.
arrangements ar>~ made with that country'. In the month of May,
1971 the Embassy wrote to the Minis<try here 'It is reque~ted that
the Commission may be forwarded to the West German authorities for execution, as soon as the arrangement is signed, requesting them to summon the witnesses for interrogation as per the
names and addresses supplied
by that
Government'.
In the
month of August, 1971 the Ministry of External Affairs was
writing that the papers had been sent to the Ministry of Home
Affairs for their concurrence and issue :ii notification under section SOSA of the Code of Criminal Procedure.
The several annexures to the affidavit filed on behalf of the
State indi_ca'te that reciprocal arrangements between the Government of India and the Federal Republic of West Germany for ·
examination of witnesses in the Federal Republic of West Germany and in India are not }'et complete.
The verbale
note
dated 6 March, 1972 issued by the Foreign Office of the German
Republic is a memorandum of talks exchanged between 'the West
German Republic and the Indian Embassy.
The note suggests
that sometime towardg the end of May or early in June, 1972 the
date for hearing of witnesses has been fixed.
It is said that the
date is not a· definite one. It has to ':>e found out whether the
witnesses would be available a!t the proposcil dates for examination.
Documents necessary for examination of witnesses are to
be translated. The verbale note gives certain ideas and information of the proposed examination of witnesses. The court passes
an order for examination of witnesses in Commission when the
court is satisfied 'not only about the necessity Of such evidence
but also about the effective enforceability of Commission for
examination of witnesses.
In the present case, there is no reciptocal arrangement .between the Government of India and the
Government of the Federal Republic of West Germany for el"amination of witnesses in West Germany and in India.
124
SUPREME COURT REPORTS
[ 1973] 1 S.C.R.
The provisions contained in sections 504 and 508A of the
Code of Criminal Procedure contain complementary provisions
for reciprocal arrangements between the Government of our
country and !lie Government of a foreign country for Commission
from Courts in India to sp·~cified courts in the foreign country
for examina•tion of witnesses fu the foreign country and similarly
for Commission from specified courts in the foreign country for
examination of witnesses residing in our conntry.
Notificatiom
No. SRO 2161, SRO 2162, SRO 2163 and SRO 2164 all dated
16 Novemb~r, 1953 published in the Gazette of' India Part II
Section 3 on 28
November,
1953
illustrate the reciproc1l
arrangements between the Government of India and the Government of the Uni•ted Kingdom and the Government of Canada for
examination of witnesses in the United Kingdom,
Canada and
th·~ ,examination of witnesses residing in India.
In the present case, no notification under section 508A of th.e
Code of Criminal Procedure has been published specifying the
courts in the Federal Republic of Wes•t Germany by whom commissioas for examination of witnesses residing in India m2y be
issued.
The notification dated 9 September, 1969 in the present
case under section 504 of 'the Cod•3 of Criminal Procedure is not
based upon any existing complete arrangement between the Government of India and the Government of the Federal Republic
of West Germany for examination of witnesses residing in West
Germany.
The not''ication dated 9 Sep1'3mber, 1969 is ineffec-
·tive for two reasons. First, there is no reciprocal arrangement
betwe~n the Government of India and the Government of th.e
Federal fo,;;cublic of West Germany as contemplat>3d in sections
504 and 508A of the Code of Criminal
Procedur~. Secondly,'
the notification under section 504 is nullified and repelled by the
affidavit evidence adduced on behalf of the State that no agreement between the two countries has yet been made.
Jn the present case, ext>~nsion of time was
granted in the
past 'to enable the Sta•te for examination of witnesses in West
Germany and return of the commission to t!:is. ~ountry. The
State could not obtain ·the return of the c01~11mss10n; Now, a
question has arisen as to wh~ther ~y extension of !lme sh?u!d
be made when it appears th•t reciprocal arrangements with1~
the cont·~mplation of section 504 and 508A of the Code of Cnminal Procedure are not made. The courts do not make orders
in vain.
When this Court finds that ~here are no arrangements
in existence within the meaning .of sectlo1'.s 504 ~nd. SOSA of 'the
Code of Criminal Procedure this Court 1s not mclmed to make
any order.
The Solicitor General on behalf of the State made a frunt
:suggestion tha•t after the appeal has been disposed of by this
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R. B. MITHANI V. STATE (Ray, J.)
125
Court no further order could be made. It is th~ State which has
asked for extension of time.
The contention of the State that
this Cour1 is powerless 'to make any order is unsound. When the
appeal was disposed of this Court gave directions for the return
of tk commission.
That direction was given because the time
originally fixed by the Bombay High Court had expired. Any
further extension of time is supplemental 'to and in con1inuation
of. the time fixed by this Court. If this Court were inclined to
pass any order for extension there would be no impediment to
passing of an order in that behalf.
In view of the faC't that this Court is not willing to grant any
further extension of 1he itime for the return .of the commission, it is
not necessary to deal with the writ petition filed by Mrthani.
The application of the. State is dismissed.
V.P.S.