2006 (7) TMI 101

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.... directed against the order passed by the Chief Metropolitan Magistrate, Esplanade, Mumbai on the application filed by accused Nos. 1 and 2 under Section 245(2) of the Code of Criminal Procedure (for short, "the Code") as also the order of the Sessions Court dated 6-2-2003, by which it has affirmed the order of the learned Magistrate dated 18-12-2001. By the impugned orders the application under S....

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....oss-examination either before charge or after the charge then only the independent assessment could be made. The findings in respect of assessment of the statements made by the Tribunal cannot be straight way incorporated by the criminal court for the reason that rules of admissibility of statements in adjudication proceeding and criminal trial are quite different. Definitely, if the accused can s....

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....tablish the link of source of acquisition with clear and identical evidence for the reasons recorded by the Tribunal which have been already discussed by means above. In such a situation atleast to my mind this is not a case where on the facts assessed by the Tribunal accused could be discharged under Section 245(2) of the Cr. P.C. Basically there are two different stages of discharge - the first ....

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....." The learned Magistrate thereafter proceeded to observe in paragraph 15 that it is open for the accused to file discharge application under Section 245(1) of the Code after prosecution leads its evidence before charge. In short, the learned Magistrate held that the application under Section 245(2) of the Code based on the order of the Customs Excise and Gold (Control) Appellate Tribunal, was ....