# RATILAL BHANJI MITHANI v. TIIB STATE OF MAHARASHTRA & ORS

- **Citation:** [1979] 1 S.C.R. 993
- **Court:** Supreme Court of India
- **Decided:** 1978-09-28
- **Bench:** R. S. Sarkaria, 0. Chinnappa Reddy, A. P. Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ratilal-bhanji-mithani-v-tiib-state-of-maharashtra-ors-7554
- **Pages:** 16

## Headnote

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Code of Crinlinal Procedure 1898, (5 of 1898)-Charge framed-Whether
Magistrate has power to cancel the charge and discharge the accured .
'Di.rcharge' find 'Acquittal'-Distinct concepts applicable to different stages
of proceedings.
The· appellant and six others were charged with the offence of entering into
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criminal conspiracy, with intent to defraud the Government of the duty payable
on various contraband goods, etc. and thereby committing offences under s. 120B I.P.C. read with s. 167(81) of the Sea Customs Act 1878 and s. 5 of the
Import and Exports Act 1947.
The prosecution alleged that as a result of the criminal conspiracy t\·ventyfour consignments of goods ca.me from abroad and were received in Bombay
and it is the case of the prosecution that it has in its possession 10 verladescheins
(called as 'mate sheets' or recei{lts) which give the description of the contraband goods.
OLJt of these 10 verladescheins, 2 relate to consignments of two
firms for which the appellant held powers-of-Attorney,
The trial Magistrate held that 10 out of the 20 Verladescheins were inadmissible either under the Evidence Act or under the Commercial Documents
Evidence Act 1939 and that 9 out of the 10 Ver:Jedescheins
were admissible
under s. I 0 of the Evidence Act. He also excluded some other letters and correspondence on the ground that they could not be said to have been written in
furtherance of the conspiracy.
On the basis of the evidence recorded, the Magistrate framed charges against
the appellant and the co-accused.
The prosecution as well as the appellant filed revision applk:ations in the
High Court.
A single Judge of the High Court held that the Magistrate wUl
have to consider afresh whether the documents, which he had admitted under
s. 32 or s. 10 of the Evidence Act were admissible or not and also consider
whether it was necessary to frame additional charges.
After this order, the Additional Chief Prcside.ncy Magistrate discharged the
accused on the grounds that since no overt act was proved against the appellant
and certain other accused no conspiracy can be inferred as against them .
A Division Bench of the High Court allowed the revision petition filed by the
prosecution and held that the Magistrate had no legal power to discharge the
accused after framing the charge.
In the appeal to this Court it was contended on behalf of the appellant that
in passing the impugned order, the Magistrate was simply acting in consonance
with the observations and implied directions contained in the order of the High
Court.
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[1979] 1 s.c.R.
Dismissing the appeal,
HEW·: 1. From the scheme of the provisi~1s contained in ss. 252 tu 257
given in Chapter XXI of the Code of Criminal Procedure 1898, it is clear that
in a warrant case instituted otherwise on a police report, 'discharge' or 'acquittal'
of accused are distinct concepts applicable to different stages of the proceedings
in Court.
The legal effect and incidents of 'discharge' and 'acquitta:.t' are c~Jso
different.
An order of di&ebargc in a warraut case instituted on complaint, l'an
be made only after the process has been issued and before the charge is framed.
A discharge without considering the evidence taken is illegal. If a prin1a f(;Cie
case is made out the Magistrate must proceed un<ler s. 254 and frame charge
against the accused.
The trial in a warrant case starts with the framing of
charge; prior to it the proceedings are only an inquiry. After the framing of
charges, if the aocused pleads guilty, the Magistrate is required to proceed \vith
the· tria1 in the manner provided in ss. 254 to 258 to a logical end.
Once a
charge is framed, the Magistrate has no power to cancel the charge and reverse
the proceedings to the stage of s. 353 and discharge the accused. flo04 F·-G,
1004 H, 1005 A·Bl
2. After a charge i, framed, the Magistrate has no power under the Code
to discharge the accused. He can either acquit or convict the accused unle

## Text

_Characters 0–39,155 of 41,471. This is a partial read: ask again with offset=39155 for what follows._

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993
RATILAL BHANJI MITHANI
v.
TIIB STATE OF MAHARASHTRA & ORS.
September 28, 1978
[R. S. SARKARIA, 0. CHINNAPPA REDDY AND A. P. SEN, JJ.]
B
Code of Crinlinal Procedure 1898, (5 of 1898)-Charge framed-Whether
Magistrate has power to cancel the charge and discharge the accured .
'Di.rcharge' find 'Acquittal'-Distinct concepts applicable to different stages
of proceedings.
The· appellant and six others were charged with the offence of entering into
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criminal conspiracy, with intent to defraud the Government of the duty payable
on various contraband goods, etc. and thereby committing offences under s. 120B I.P.C. read with s. 167(81) of the Sea Customs Act 1878 and s. 5 of the
Import and Exports Act 1947.
The prosecution alleged that as a result of the criminal conspiracy t\·ventyfour consignments of goods ca.me from abroad and were received in Bombay
and it is the case of the prosecution that it has in its possession 10 verladescheins
(called as 'mate sheets' or recei{lts) which give the description of the contraband goods.
OLJt of these 10 verladescheins, 2 relate to consignments of two
firms for which the appellant held powers-of-Attorney,
The trial Magistrate held that 10 out of the 20 Verladescheins were inadmissible either under the Evidence Act or under the Commercial Documents
Evidence Act 1939 and that 9 out of the 10 Ver:Jedescheins
were admissible
under s. I 0 of the Evidence Act. He also excluded some other letters and correspondence on the ground that they could not be said to have been written in
furtherance of the conspiracy.
On the basis of the evidence recorded, the Magistrate framed charges against
the appellant and the co-accused.
The prosecution as well as the appellant filed revision applk:ations in the
High Court.
A single Judge of the High Court held that the Magistrate wUl
have to consider afresh whether the documents, which he had admitted under
s. 32 or s. 10 of the Evidence Act were admissible or not and also consider
whether it was necessary to frame additional charges.
After this order, the Additional Chief Prcside.ncy Magistrate discharged the
accused on the grounds that since no overt act was proved against the appellant
and certain other accused no conspiracy can be inferred as against them .
A Division Bench of the High Court allowed the revision petition filed by the
prosecution and held that the Magistrate had no legal power to discharge the
accused after framing the charge.
In the appeal to this Court it was contended on behalf of the appellant that
in passing the impugned order, the Magistrate was simply acting in consonance
with the observations and implied directions contained in the order of the High
Court.
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Dismissing the appeal,
HEW·: 1. From the scheme of the provisi~1s contained in ss. 252 tu 257
given in Chapter XXI of the Code of Criminal Procedure 1898, it is clear that
in a warrant case instituted otherwise on a police report, 'discharge' or 'acquittal'
of accused are distinct concepts applicable to different stages of the proceedings
in Court.
The legal effect and incidents of 'discharge' and 'acquitta:.t' are c~Jso
different.
An order of di&ebargc in a warraut case instituted on complaint, l'an
be made only after the process has been issued and before the charge is framed.
A discharge without considering the evidence taken is illegal. If a prin1a f(;Cie
case is made out the Magistrate must proceed un<ler s. 254 and frame charge
against the accused.
The trial in a warrant case starts with the framing of
charge; prior to it the proceedings are only an inquiry. After the framing of
charges, if the aocused pleads guilty, the Magistrate is required to proceed \vith
the· tria1 in the manner provided in ss. 254 to 258 to a logical end.
Once a
charge is framed, the Magistrate has no power to cancel the charge and reverse
the proceedings to the stage of s. 353 and discharge the accused. flo04 F·-G,
1004 H, 1005 A·Bl
2. After a charge i, framed, the Magistrate has no power under the Code
to discharge the accused. He can either acquit or convict the accused unless
he decides to proceed oo.der ss. 349 and 562 of the Code of 1898 (which corresponds to sections 325 and 360 of the C'ode of 1973). Excepting where the
prosecution must fail for want of a fundamental defect, such as want of sanction,
an order of acquittal must be based upon a 'finding of not guilty' turning on
the merits of the case a.nd the appreciation of evidence at the conclusion of
tho trial. [l 005 C-D]
3. If after framing charge the Magistrate whimsically, without appraising
the evidence and without permitting the prosecution to prodUce all its evidence,
'acquits• the accused, such an acquitta.1, without trial even if clothed as 'discharge'
will be illegal. [1005 El
4. In the instant case the Magistrate framed charges against the appellant.
On the disposal of the revision application lie arbitrarily deleted those charges
and 'discharged' the accused without examining the
remaining
prosecution
witnesses. [1005 Fl
5. Assuming arguendo, the Magistrate's order of discharge was an order of
'acquittal' then also, it was manifestly illegal. It was not paMed on merits, but
without any trial, with consequent failure of justice. The High Court has un
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doubtcdly the power to interfere with such a patently illegal order in the exer·
cise of its revisional jurisdiction under s. 439 and direct a retrial. Such retrial
will not be bMred by the provisions of s. 40:3 (of the Code of 1898), the earlier
proceedings taken by the Magistrate being no trial at all and the order passed
therein being neither a valid 'discharge' of the accused nor their acquittal as
contemplated by s. 405(1) [1007 F-HJ
Mohd. Safi v. Srate of West Bengal All 1966 SC 69 referred to.
CRIMINAL APPELLATE JU!lISDTCTION : Criminal Appeal No.
95
of 1977.
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Appeal by Special I.Cave from the Judgment and Order dated
21-1-76 of the Bombay High Court in Criminal Revision Application
No. 565 of 1969.
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RATILAL v. MAHARASHTRA (Sarkaria, !.)
995
I. N. Shroff and H. S. Parihar for the Appellant.
Soli J. Sorabjee, Addi. Sol. Gen! (for Respondent No. 2), K. N.
Bhat, H. R. Khanna, M. N. Sroff and Glrish Chandra for Respondents
Nos. 1 and 2.
The Judgment of the Court was delivered by
SARKARJA, J.-This appeal by special leave is directed against a
judgment, dated January 21, 1976, of the High Court of Judicatnre at
Bombay in Criminal Revision Application No. 565 of 1969, whereby
it set aside an order, dated February 26, 1969, of the Chief Presidency
Magistrate and directed the latter to restore Case No. 244/C.W.
of
1968 against the accused persons, excepting accused No. 7 (who is
since dead) for being dealt with in the light of the observations made
therein.
The case was originally instituted on April 1, 1961 on the basil!
of a criminal complaint filed by the Assistant Collector (Customs) in
the Court of the Chief Presidency Magistrate, Esplanade, Bombay. It
is alleged in the complaint that between August 1957 and March 1960,
offences under Section 120-B, I.P.S., read with Section 167(81)
of
the Sea Customs Act, 1978, and Section 5 of the Imports and Exports
Act, 1947, were committed by one Ramlal Laxmidutta Nanda and
seven others, including the appellant, who is accused No. 2 in the Trial
Court.
Ramlal Laxmidutta Nanda was alleged to be the principal
culprit.
He died on Sep'tbmber 15, 1960.
As a result of a conspiracy, twenty-for consignments of goods came from
abroad
and
were received in Bombay.
The conspiracy was carried out in this
manner.
By steamer, two consignments bearing similar marks would
arrive such as M.T.S. M.I.S. marked in triangle.
The first consignment would contain the genuine goods and the second consignment
would contain less number of cases than the first consignment.
The
documents would arrive for the first consignment.
With the help of
the documents for the genuine goods, the Customs examination would
be =ried out, and then at the time of removing the real consignment,
contraband consignment plus one case of the genuine consignment
would be removed.
Remaining goods of the genuine consignments
with their marks tampered, would be left unattended in the docks .
Out of the 24 consignments brought into India, the last four were seized
by the Customs.
The appellant Mithani was not Jinked with any of
those four. But with regard to the remaining 8 out of the twenty
consignments, the prosecution alleges that it has in its possession
10
Verladescheins (called as 'mate sheets or receipts') which give
the
description of the contraband goods. Out of these 10 Verladescheins.
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2 relate to consignments in the name of Suresh Trading Co. and Dec
Deepak & Co.
From the proprietors of these two firms, the appellant
Mithani held Powers of Attorney.
Mithani was arrested and bailed out on May 11, 1960. Between
March 1962 and December 1962, the prosecution examined about 200
witnesses before the Magistrate, but had not yet examined any witness
in regard to any of the 10 Verladescheins.
The complainant made an application to the trial magistrate,
requesting him to get on record a number of documents falling into
these categories, viz. (I) Verladescheins (Mate's receipts), (2) the
correspondence that passed between Shaw Wallace & Co. and their
principals and agents •abroad and also the correspondence that passed
between the other shipping agents in Bombay with their principals,
and (3) the documents concerning the Company known as C.C.E.I.
at Zurich.
By an order, dated August 24, 1962, the Magistrate held that 10
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out of the 20 Verladescheins were inadmisiable either under the Evidence Act or under the Commercial Documents Evidence Act, 1939.
By another order, dated December 6, 1962, the Magistrate held that
9 out of the 10 Verladescheins were admissible un<ler Section 10 of
the Evidence Act.
Some other letters and correspondence were also
·excluded on the ground that they could not be said to have been
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written in furtherance of the conspiracy.
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On December 12, 1962, the Magistrate found that no other witness for the prosecution was present.
He, therefore, passed
this
order :
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"None of the witnesses are present.
The case is very
old.
There is enough evidence for the purpose of charge
and about 200 witnesses are examined.
Prosecution may
examine all witnesses as they deem proper after the charge.
Prosecution closes its case.
Accused statement recorded.
Adjourned for arguments for charge to 13.12.1962."
The Magistrate then heard the arguments and thereafter on December 21, 1962, on the basis of the evidence already recorded, framed
charges against Mithani and his 6 co-accused.
Under the first charge,
Mithani (accused No. 2) was jointly charged with Accused 1, 3, 4;-5,
6 and 7 with criminal conspiracy between September 1957 and February 1, 1960 or thereabout, with intent to defraud the Government of
India of the duty payable on various contraband goods and to evade
the prohibition and restrictions imposed relating thereto for acquiring
possession of large quantity of contraband goods etc.
It was specifically recited in the charge that accused No. 2 was, at the relevant time,
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RATILAL v. MAHARASHTRA (Sarkaria, J.)
997
j)artner of Shanti Lal and Chagan Lal & Co., Bombay, and also constituted Attorney of Suresh Trading Co., Dee Deepak & Co., New Delhi,
and also of Eastern Trading Corporation, Bl'mbay and had an interest
in all these three concerns.
On February 19, 1963, the State filed Criminal Revisions Application No. 107 of 1963 in the High Court against the orders dated
August 24, 1962 and December 6, 1962 of the Magistrate, whereby
the latter had refused to admit 11 Verladescheins out of 20 in evi-
<lence. The State, also, made a grievance against the failure of the
Magistr.1te t-0' frame charges in respect of certain alleged acts of the
accused,
It was con1ended that the Magistrate had unduly curtailed
the period of conspiracy, while the evidence brought on the record
by the Prosecution showed that this period was longer than what the
Magistrate had taken into account.
On July 17, 1964, Mithani, also, filed Criminal Revision No. 574
of 1964 in the High Court, challenging the Magistrate's Order, dated
December 6, 1962, whereby he had admitted 9 Verladescl1eins, Bills
of Lading, Invoices etc., into evidence.
It was further alleged in the
Revision Petition : "It ought to have been appreciated that all the
Verladescheins, Invoices and Bills of Lading being inadmissible, there
is no evidence left on record to make even a prima facie case <tgainst
the petitioner."
The Revision petitioner, inter alia, prayed "that the
order of the learned Magistrate dated December 6, 1962, in so far as
it is against the. petitioner, and the charges framed by the learned Magistrate against the petitioner, be set aside and he be discharged from
the case."
Revision Application No. 107 by the State was heard by Mr. Justice H. R. Gokhale (as he then was) on August 19, 1964. It was
contended there on behalf of the prosecution that all the Verladescheins
were straightway admissible under sub-section
(2) of Section 32,
Evidence. Act. Gokhale, J. Held that since the preliminary condition
set out in the prefatory part of Section 32, (Viz., that the persons whose
statements are sought to be admitted under Section 32 are such that
their attendance cannot be procured without an amount of delay or
expense, which under the circumstances of the case, may appear to
the Court to be unreasonable, had not been satisfied these Verladescheins (Mates re1:eipts) wou~ not be admissible under Section 32.
In view of this, finding the learned Judge felt that "it really does not be
come necessary to consider that these Verladescheins were not prepared in the ordinary course of business". The learned Judge was
careful enough to caution : "I am not suggesting that for the reasons
all these documents are false." Indeed, he conceded that they may be
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relevant to the facts in issue, and added : "If the prosecution desil;es
to ·rely upon the evidence of these documents the prosecution certainly
will be entitled to prove them or to prove the correctness of the description of the document in the ordinary way without having resort
to the exception contained in Section 32."
As regards the question whether these Ver!adescheins were admissible under Section 10, the learned Judge held that ''before considerag
this question, it would be wrong to look at these very documents the
admissibility of which is in dispute", and that "such a conclusion can
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be reached from evidence, documentary, oral or circumstantial, but
apart fro,n the disputed document itself.
It does not appear from
the order of the learned Magistrate that there was any independent
material from which he had formed the opinion that two or more persons had conspired together to commit an offence."
The learned
Ju~ge significantly added : "If there is any such material or if tlte
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prosecution leads further evidence and if such material is brought on
record, the learned. Magistrate will, at the appropriate stage, be entid.-
ed to take this material into consideration and decide whether these
documents can be admitted under Section 10 of the Evidence
Act."
The learned Judge pointed out that this could include an attempt to
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take out the goods.
In this connection he observed : "If apart from
the. question of the period during which the conspiracy extended they
are not admissible in evidence, because other conditions required t9
be satisfied under Section 10 are not satisfied, then it is another matter.
But I cannot accept his conclusion that they would not be so admissible,
because they do not fall within the period of conspiracy."
The learned Judge concluded : "I have no doubt that the learned Magistrate
will have to consider afresh whether the documents, which he has admitted under Section 32 or Section 10 are admissible or not.
In any
case, the order which he has made admitting certain documents under
Section 10 or Section 32 was an interlocutory order and the learned
Magistrate will be entitled to reconsider the position in the light of
the observations in this judgment ......... The .learned Magistrate
in the light of the view which I have taken, will also consider whether
it is necessary to frame additional charges and to pass an appropriate
order."
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The Revision Application No. 574 of 1964, filed by Mithani, was
rejected by a separate order, dated August 21, 1964 on the ground that
in the view which the learned Judge had taken in Criminal Revision
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llATILAL v. MAHARASHTRA (Sarkaria, /.)
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No, i,07 of 1963, it was not necessary to admit this Revision Application, · It was, however, observed that the Magistrate will take the observations in that judgment into consideration and consider "whether
the interlocutory order, against which the present Revision Application
is filed, needs to be reviewed."
The prosecution filed Special Leave Petitions (965 and 966
of
1965) in this Com:! against the judgment, dated August 19/20, 1964
of Mr. Justice Gokhale, and against the High Court's order refusing
to grant certificate of fitness.
This Court on January 27, 1966, summarily· dismissed both these petitions.
The prosecution then made an
application to the Magistrate to take some photostat copies of certain
documents .. The Magistrate granted this
application.
Accused
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challenged this order of the Magistrate in the High Court.
By its
order, dated October 4, 1966, the High Court restricted the time
to
prosecution by three months for calling the Foreign Witnesses. After
expiration of this period, the prosecution on January 11, 1967 filed an
application in the High Court for cancellation of Mithani's bail on
the ground that he was tampering with the witnesses and abusing the
liberty granted to him.
The High Court cancelled Mithani's bail and
Mithani surrendered and was committed to jail custo'dy on January 13,
1967.
Mithani came by special leave against the order cancelling
his bail, to this Court
By order dated May 4, 1967, ibis Court
dismissed Mithani's appeal, but restricted the time for examining the
German Witnesses cited by the prosecution upto June 26, 1967. Since
there was delay in procuring the attendance of German Witnesses within the time granted, Mithani was released on bail by an order dated
July 26, 1967 of this Court. Thereafter, the prosecution applied to
the Magistrate to proceed with the case without the Foreign Witnesses.
On July 10, 1967, the prosecution applied to the Magistrate for
issue of commission for examination of the German Witnesses at Hamburg or Berlin o'r London.
The Magistrate rejected this application
by his order dated August 8, 1967. Against the Magistrate's order,
the prosecution, ag.iin, went in revision to the High Court, which rejected the same by an order in September, 1967. Another revision
petition filed in the High Court by the prosecution was dismissed by
the High Court (V. S. Desai & Wagle JJ) by an order dated Aμgust 9,
1968.
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On December 2, 196S, the! prosecution made an application for
examining a number of witnesses to establish the preliminary facts for
admission of the Verladasheins and other documents under Sections
32(2) (3) and 10 of the Evidence Acf and under the Commercial DocuH
ments Act. The Ma<ristrate rejected that application by his
order
dated January 9, 1969.
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By an order dated February 26, 1969, the Additional Chief Presidency Magistrate, deleted charges 2 to 9 against Accused 2 (Mithani),
3 and 7, and 'discharged' them. The following
extract from the
Magistrate's order will be useful to appreciate its true nature :
"I therefore hold that with regard to overt acts in charges
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Nos 2 to 9 no charges can be framed against any of the accused and therefore charges Nos. 2 to 9 will stand deleted.
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Accused Nos. 2, 3 and 7 are concerned only in some of
the charges Nos. 2 to 9.
They are not concerned in charges
Nos. 10, 11, 12 and 13.
Therefore as no overt act is held proved against them no
conspiracy can be inferred as against them and
therefore
charge No. 1 of conspiracy as against them must go.
Therefore with regard to accused Nos. 2, 3 and 7 I hold
that no case is made out against them and I therefore hold
them not guilty u/s 167 r.w. 81 of the Customs Act for contravention of Jmport & Export Control Act 1947 and 1955
and for conspiracy and order them to be discharged."
Against the Magistrate's order, dated February 26, 1969, the prosecution filed Criminal Revision Application No. 565 of 1969 in the
High Court.
By its judgmen~ dated December 16/17, 1969, a Bench of the
High Court (consisting of Vaidya and Rege JJ.) allowed Criminal
Revision 565 of 1969 mainly on the ground that the MlMlistrate after
framing the charge, had no legal power to discharge the accused perF
sons. It was observed that "the entire complexion of the cases changed on account of the retirement of the Magistrate.
The new Magistrate who will hear the matter, will have to find out whether he must
alter or vary the charge and for that purpose to issue a fresh process
to the two living deleted accused, after taking into consideration the
evidence already recorded by the former Magistrate ...... and such
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other evidence he may have to record hereafter." The High Court
concluded : "We are setting aside the order of discharge on
the
ground that it is open to the new Magistrate to frame a charge against
the deleted accused on considering the material; and also on the ground
that the former Magistrate had no power to discharge the accused after
framing the charge."
The High Court further observed thaf, "whatH
ever submissions the accused want to make with regard to not framing
the charge are also open to them."
At that stage, they did not want
and could l'IOt consider the evidence before the Magistrate.
In' the
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RATILAL v. MAHARASHTRA (Sarkaria, !.)
100 I
result, altei order dated Februaiy 26, 1969 of the Magistrate was set
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aside aad the case was restored to the file of th~ Magistrate, except
with rel!llrd to the dec,£ased accused No. 7 for being dealt with
as
early as po11sible, in! accordance with law and in the light of the observations made by the High Court.
Against this order, dated January 21, 1976, of the High
Court
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setting aside the order dated February 26, 1969 of the Magistrate discharging the accused, the accused 2 (Mithani) has come in appeal before m.
The points canvassed by Shri I. N. Shroff, learned counsel for the
appella11t, may be summarised as under :
{i) In passing the thep impugned order, the Magistrate was simply
acting in consonance with the observation and implied directions contained in the judgment, dated August 19,'.20, 1964, of Mr. Justice H. R.
Gokh;lle in Cr. R.A. No. 107 of 1964. On the contrary, the Bench
of the High Court (consisting of Vaidya and Rege JJ) has failed in
its duty to uphold the aforesaid judgment ot. Mr. Justice Gokhale<--<-
which judgment had been upheld by this Court while diSmissing prosecution's. Special Leave Petitions 965 and 966 of 1975. Mr. Justice.
Gokhale-so proceeds the irgument-liad held "that 10 Verladasheins
were inadmissible under Section 32 and/or Section 10 of the Evidence
Act."
The legal consequence of this finding was that the charges
framed lly the Magistrate on December 21, 1962, on the basis of the
said Vertadescheins, were unsustainable in law and the Magistrate had
to examine the matter de novo by ignoring the said charges or by
amending, altering the sam~ais may be justified on the remaining
admissilile evidence on record .
(ii) In reviewing and deleting the charges and discharging the appellant (Mithani) and two other accused, the Magistrate was acting in
accordaace with the ob~ervation of Gokhale J. in Cr. R.A. 574 of 1974,
which was to the effect, that it would be open to the Magistrate to consider wkther the interlocutoiy order against which that revision applic
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cation was filed, needs to be reviewed.
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(ill) Siace the Magistrate had under the Code of Criminal Procedure, llO power to delete the charges framed against the appellant and
two others, it will be deemed that in the eye of law those charges still
existed when the Magistrate by his order dated February 26, 11169, discbwr# the accused Mithani and tw0 othus.
This being the case,
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tllis order of "discharge'' ought to have been treated as an order of
'a"'Juital'.
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(iv)
(a) In revision, the High Court was not competent to set
aside this order of 'acquittal' and direct, as it were, a retrial of the
accused.
(b) Since the appellant had, in reality, been acquitted by the Magistrate, he could not be retried on the same charges because of the
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double jeopardy or autrefois acquit.
(v) There has been gross laxity and delay on the part of the prosecution in prosecuting their case and in producing all their evidence,
w.hich is nothing short of abuse of the process of the Court.
The
complaint was filed on April I, 1961.
The order of "discharge" was
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pasesd hy the Magistrate on February 26, 1969, and the
aforesaid
order came up for consideration in revision before the High Court in
January 1976.
The High Court's order. dated January 21, 1976,
directing de nova proceedings against the appellant after a lapse of
several years would be unjust and unfair, particularly when this delay
was attributable to the prosecution which had, indeed, closed its eviD
dence before the framing of the charge and its request to examine the
German Witnesses on commission stands declined.
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As against this, Shri Soli Sombji, learned Additional SoilcitorGeneral submits that the appellant (Mithani), in fact, had never filed
any revision against the order of the Magistrate, framing .. charges
against him and others .. It is pointed out that in Cr.R.A. No. 574
of 1964 filed by Mithani on July 17, 1964 in the High Court, the
challenge was, in terms, confined to the Magistrate's order, dated
Dccem ber 6, 1962, whereby he had admitted 9 Verladescheins, Bills
of Lading, invoices etc. into evidence; and that the order dated Deeember 21, 1962, framing the charges was not specifically challenged.
In any case, Gokhale J. had sulll.Illarily rejected Mithani's Criminal
Revision by an order, dated· August 21, 1964. According to Shri
Sorabji, the further observation in that order of Gokhale J. to the
effect that it was open to the Magistrate to consider, "whether. the
interlocutory order against which the pr.esent revision application ·is
filed, needs to be reviewed", was made o_nly in respect of the Magistrate's order dated December 6, 1962 and not the order whereby the
charges were framed.
It is further submitted that Goklrale J .'s observations and directions in his judgment dated August 19 /20, 1964 in
Cr.RA. No. 107 of 1964, could not, by any stretch of imagination,
be construed ·as authorising the Magistrate to reconsider and delete
the charges, and discharge the accused.
On the contrary, tlie learned
Judge had directed amendment of the charge so that the period ()f
the conspiracy was not restricted to !he period mentioned· in ·!he
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charges. It is further submitted that the Magistrate's order arbitrarily
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deleting the charges and "discharging" the accused, was
patently
illegal and the High Court was fully competent and justified to set
it aside in the exercise of its revisional powers under Section 439
of the Code.
As regards delay in the proceedings, Shri Sorabji submits, it was
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mostly due to circumstances beyond the control of the prosecution;
that the charge agains~ the appellant was a grave one and the direction
given by the High Court to take further
proceedings,
inter alia,
against the appellant was not unjust and unfair.
We are unable to accept any of the contentions advanced by Shri
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Shroff.
At the outset, let us have a look at the relevant provisions of the
Code of Criminal Procedure, 1898, which admittedly governed the
pending proceedings in this case.
The procedure for trial of warrant
cases by Magistrates is given in Chapter XXI of that Code.
The
present case was instituted on a criminal complaint.
Section 252
provides that in such a case, the Magistrate shill proceed to bear the
complainant (if any) and take all such evidence, as may be produc&!,
in support of the prosecution.
Sub-section (2) of that Section casts
a duty on the Magistrate to ascertain the names of persons likely to
be acquainted with the facts of the case and to be able to give evidence for the prosecution, and to summon all such persons for evidence.
Section 253 indicates when and in what circumstances an accused
may be discharged : It says :
"253(1) If, upon taking all the evidence referred to in
Section 252, and making such examination (if any) of the
accused as the Magistrate thinks necessary, he finds that
no case against the accused has been made out which, if
\mrebutted, would warrant his conviction, the
Magistrate
shall discharge him .
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(2) Nothing in this section shall be deemed to prevent
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·.• a Magistrate from discharging the accused at any previous
. •· stage of the cas« if, for reasons to be recorded by such
· Magistrate, he considers the charge to be groundless."
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Sret.ion 254 indicates when and in what circumstances a clmrge should
be. -framed. It reads :
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"254. If when snch evidence and examination have been
taken and made, or at any previous stage of the case, the
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Magistrate is of opinion that there is ground for presuming ·that the accused has committed an offence triable
under this Chapter, which such Magistrate is COl!!Petent to
try, and which in his opinion could be adequately punished
by him, he shall frame in writing a charge
against
the
accused."
Section 255 enjoins that the charge shall then be read over and
explained to the accused, and he shall be asked whether he is guilty
or has any defence to make. If the accused pleads guilty, the Magistrate shall record that plea, and may convict him thereon.
Section 256 provides that if the accused refuses to plead or does:
not plead, or claims to be tried, he shall b@ required to state at the
next hearing whether he wishes to cross-examine any of the witnesses
for the prosecution whose evidence has been taken, and if he says
he so wants to cross-examine, the witnesses named by him shall be
recalled and he will be allowed to further cross-examine them.
"The
evidence of any remaining witnesses for the prosecution shall next be
taken" and thereafter the accused shall be called upon to enter upon
and produce his defence.
Section 257 is not material.
Section 258(1) provides that if in
any case "in which a charge has been framed the Magistrate finds
the accused not guilty, he shall record an order of acquittal.
Subsection (2) requires, where in any case under this chapter the Magistrate does not proceed in accordance with the provisions of Section
3491 or Section 562, he shall, if he finds the accused guilty, pass
sentence on him in accordance with Jaw.
From the scheme of the provisions noticed above, it is clear that
in a warrant case instituted otherwise on a police report, 'discharge'
or 'acquittal' of accused are distinct concepts applicable to different
stages of the proceedings in Court. The legal effect and incidents of
'discharge' and 'acquittal' are also different.
An order of discharge
in a warrant case instituted on, complaint, can be made only after
the process has been issued and before the charge is framed.
Secfum
253 ( 1) shows that as a general rule there an be no order of discharge unless the evidence of all the prosecution witnesses· has been
taken and he considers for reasons to be recoroed, in the light of the
evidence that no case ha11 been made out.
Sub-section (2) whitlt
authorises the Magistrate to discharge the accused
at any previoes
stage of the case if he considers the charge to be groundless, is an
exception to that rule.
A discharge without considering the evidence
taken is illegal. If a prima facie case is made out the Magistrate
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ltATILAL v. MAHARASHTRA (Sarkaria, !.)
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must proceed under Section 254 and frame charge against the accused.
Section 254 shows that a charge can be framed if after taking evidence
or at any previous stage, the Magistrate, thinks that there is ground
for presuming that the accused has committed an offence triable as
a warrant case.
Once a charge is framed, the Magistrafo has no
prnver under section 227 or any other provision of the Code to cartcel
the charge, and reverse the proceedings to the stage of Section 3 5 3
and discharge the accused.
The trial in a warrant case· starts with
the framing of charge; prior to it, the proceedings are only an inquiry.
After the framing of charges if the accused pleads not guilty, the
Magistrate is required to proceed with the trial in the manner provided
in section 254 to 258, to a logical end.
Once a charge is fl'amed iii.
a warrant case, instituted either on cd,mplaint or a police report,
the Magistrate has no power under the Code to discharge the accused,
and thereafter, he can either acquit or convict the accused unless Ile
decides to proceed under Section 349 and 562 of the Code of 1892
(which correspond to Sections 325 and 360 of the Code of 1973).
Excepting where the prosecution must fail for want of a fundamental
defect, such as want of sanctioo, an order of acquittal must be based
upon a 'finding of not guilty' turning on the merits of the case and
the appreciation of evidence at the conclusion of the trial.
If after framing charges the Magistrate whimsically,
without
appraising the evid~nce and without permitting the prosecution to
prodμce all its evidence, 'discharges' the accused, such an acquittal,
without trial, even if clothed as 'discharge', will be illegal.
This is
precisely what has happened in the instant case.
Here, the Magistrate, by his order dated December 12, 1962 framed charges against
Mithaai and two others. Subsequently, when on the disposal of the
Revisicn applications by Gokhale, J. the records were received back,
he arbitrarily deleted those charge_s and discharged the accused, without examining the "remaining witn~ses" of the prosecution which he
had in the order of framing charges, said, "will be examined after
the charge" .
It is not correct as has been contended on behalf of Mithani,
that in adopting this course the Magistrate was only acting in accordance with the observations/directions of Gokhale J. in the judgments
disposing of Criminal Revisions 107 /63 and 514 of 1964. A perusal
of Gokhale J's orders in these two Revision Applications-material
portions of which have been quoted earlier-will show that there is
nothing in those orders which expressly or by implication required the
Magistrate to delete the charges and 'discharge' or acquit the accused.
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SUPREME COURT REPORTS
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On the contrary, the learned High Court Judge (Gokhale J.) had
accepted the Revision filed by the prosecution and directed the Ma_gis'..
trate to amend the charges in so far as they appear to restrict the
period of conspiracy to the one between the dates mentioned in the
eharges.
Gokhale J. had further directed the Magistrate to consider
the circumstantial and other evidence of the prosecution with a· 'view
lo frame additional charges as claimed by the prosecution.
Gokhale J's judgment in Cr.RA. 107 shows that the learned Judge
did not hold that the verladesheins or the other documents in que.stion
tendered by the prosecution, were not relevanfat all, under any pro~i·
sion of the Evidence Act.
All that was held by him was that b~~o.rll
these documents could be admitted under Section 32(2) or Sectipn .. 10.
of the Evidence Act, some preliminary facts had lo be establisl!e<l .by
the prosecution.
For instance, one of the conditions precedent f.or the
admissibility of a previous statement of a party under Section 32(i)
is that the attendance of the witness who made that statement, could
not be procured without an amount of delay and expense which in the
circumstances of the case, appeared t~· the Court to be unreasonable.
Similarly, with regard to the invocation of Section 10, Evi<!ence·Act,
it was observed that before the documents concerned could be admit.led
under Section 10, Evidence Act, prima facie proof, aliunde shoμld be,
given about the existence of the conspiracy.
On the contrary, Gokhale
J. clearly held that the documents, in question, were relevant to the
facts in issue, but they had to be proved in any of the ways ·recognised
by the Evidence Act, Gokhale J. never quashed the charges ·akeac\y
framed by the Magistrate.
It is true that the prosecution in its Special
Leaye Petitions 965 and 966 contended that the observations mac\~
by Gokhale J. with regard to the admissibility of Verladasneins ·and
other documents are of "far reaching importance and are likely to prejudice the prosecution" and will affo~t the future course of the proceed.~
ings adversely to the prosecution.
However, apart from thesc; Verla·
dasheins there was other circumstantial and oral evidence on the record
and more evidence was yet to he produced by the prosecutiou· after the
charge.
The prosecution wer~ doing their best to secure the· ~vide!Wll
of German witnesse& in Europe. They want to produce other evidence
also, apart from the Verladasheins, to show a
prima fade case of
eonspiracy so that in accordan_ce with the guidelines laid
down in
Gokhale J's judgment, they could make out a case for the'admissibility'
of the Verladasheins under Section 10, Evidence Act.
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A perusal of the copy of the Revision Application No 574/64 filed.
by Mithani in the High Court, will show that the only order specificq(ly.
challenged therein was one dated December 6, 1962 whereby .,th(l
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RATILAL v. MAHARASHTRA (Sarkaria, J.)
1007
Magistrate had held tJJat 9 Verladasheins were admissible under Section 10, Evidence Act, although, incidentally, it was mentioned that
the charges framed as a ~onsequence of the impugned order dated
December 6, 1962, should also be quashed.
Even so, Mithani's Revision Application (No. 574/64) was summarily rejected by the learned
Judge with the observation that the Magistrate could, in the light of
the observations in the Judgment in Cr.Rev. A. 107 of 1963, "consider,
whether the interlocutory order against which the present Revision
Application is filed needs to be reviewed." The crncial part of the
observation is that which has been underlined. It shows that this observation· has reference only to the order dated December 6, 1962 whereby
the Magistrate had held 9 Verladasheins admissible under Section 10.
In this observation, the word "order" is used in singular.