TaxTMI 
TaxTMI 
2022 (11) TMI 765
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....orporation as per list attached to the license issued by Chief Controller of Imports and Exports for the period 1985-86. Such license was delivered by the Project & Equipment Corporation to M/s P.K. Himatsingka & Company on 5th January, 1987 to be utilized within July, 1988. P.K. Himatsingka & Company duly discharged such obligation. 3. Sri Samir Kumar Mukherjee, Deputy Chief Controller of Imports and Exports lodged a complaint against the petitioners before the learned Chief Metropolitan Magistrate, Calcutta on 27th December, 1989 which was registered as G.R. Case No. 62 of 90 and the said case was subsequently converted to a Complaint case and renumbered as Complaint Case No. C/888/91 under Section 120B/420/467/468/471 of the Indian Penal Code, read with Section 5 of the Import and Export (Control) Act and Section 132/135 of the Customs Act. 4. Learned Chief Metropolitan Magistrate was pleased to take cognizance on 5th January, 1990 and transferred the case to the learned 10th Court of Metropolitan Magistrate for disposal on 5th January, 1990. The case was subsequently transferred to the learned 12th Court of Metropolitan Magistrate and after examination of 24 witnesses, le....
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....proper procedure for disposal of the complaint was adopted. 6. Challenging the legality and maintainability of the aforesaid proceeding the petitioners preferred a criminal revision before this Hon'ble Court being C.R. No. 1482 of 1995. However it was dismissed ex-parte on 15th July, 1998. Charges in the said case were framed on 22nd February, 1995 but recording of evidence could not be completed even after lapse of two years. Under such circumstances in consonance with the direction given by Hon'ble Supreme Court in the case of Rajdeo Sharma vs. State reported in JT 1998 (7) SC application was taken out for closure of the prosecution. But the said application was dismissed by the learned Trial Court vide order dated 9th January, 2001. 7. Being aggrieved by and dissatisfied with the said order another application was taken out under Section 482 of the Criminal Procedure Code being C.R. No. 278 of 2001 which was disposed of by the Coordinate Bench of this Hon'ble Court on 10th February, 2001 with liberty given to the petitioners to agitate the points raised in the revisional application before the learned Trial Court at the appropriate stage. Pursuant to such order the petitio....
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....e that in the sanction, Ext. 1, the sanctioning authority has stated that he was the competent authority to accord sanction for taking cognizance of the offence but while actually according the sanction he did it for the prosecution as found in the last paragraph and not for taking cognizance. In the circumstances, taking cognizance of the alleged offence under Section 5(2) of the Prevention of Corruption Act and the Customs Act must be held to be bad for lack of proper sanction and the charge on these two counts are liable to be quashed." In the judgement as quoted above, decision of Hon'ble Supreme Court pronounced in the case of RAM KUMAR VS. STATE OF HARYANA reported in AIR 1987 SC 735 has been relied upon. Mr. Roy, learned Senior Counsel also placed the judgement pronounced in the case of Ram Kumar (supra). 10. It is further adverted by Mr. Roy that a joint complaint alleging commission of offence under the Import and Export (Control) Act and Customs Act is not maintainable. The offence laid down under different acts are different in nature. It is an error committed by learned Trial Court resulting into abuse of process. Taking cognizance of this case and framing of char....
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....discharge of purported discharge of their duty: (1) They cannot be "prosecuted" without obtaining a sanction to prosecute from the appropriate Government (Section 1321 of the Code of Criminal Procedure) (Cr.P.C.) (2) No Court can take "cognizance" of an offence against such an official in the absence of the previous sanction of the appropriate Government (see Section 1972 of Cr. P.C. ) 3. In the present case the Trial Court has taken cognizance without the previous sanction (of the State Government) as envisioned by Section 197(2) read with Section 197(3) of the Code of Criminal Procedure in respect of a charge that the appellant had in the purported discharge of his duties used force in excess of what was necessary and thereby committed on offence. Admittedly, there is no such previous sanction authorising any court to take 'cognizance' of the offence against the appellant. The High Court has, however, taken the view that inasmuch as the State Government itself had accorded sanction to 'prosecute' the appellant in exercise of powers under Section 132 of the Cr.P.C. there was no need for sanction under Section 197 of Cr.P.C. The reasoning ....
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....nce or offences for which" the concerned public servant should be tried and "the court before which the trial is to be held". The authority seized of the matter in the context of sanction under Sec. 132 does not have to address himself to these questions and in fact has no competence in this behalf. (6) One is an authority to an individual to 'prosecute' the alleged offender, the other is an authority to 'try' the alleged offender." 13. Placing his reliance upon the said judgement of Hon'ble Supreme Court Mr. Kundalia adverted that the petitioners not being the member of Arm Forces or Forces charged with maintenance of public order are not entitled to two safeguards under Section 132 of the Criminal Procedure Code and Section 197 of the Criminal Procedure Code. According to Mr. Kundalia, learned Counsel, the sanction under Sub- Section 1 of Section 137 of the Customs Act paves the avenue for the learned Magistrate to take cognizance and it is good enough to maintain the proceeding. To buttress his point Mr. Kundalia relied upon decision of a Division Bench of this Hon'ble Court pronounced in SAYED MOHAMMAD HASAN VS. K.C. DAS reported in 1991 SCC Online C....
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....hich has been issued under Section 137(1) is invalid. We are unable to hold that the Collector of Customs has to accord a sanction to the competent Magistrate to take cognizance. We have already indicated that it is not the contemplation of the law that the Collector shall accord sanction to take cognizance. It is the contemplation of the law that there must be a previous sanction of the competent Authority for the Court to take cognizance. 29. We have unable to approve the decision of the Learned Single Judge reported in (1989) 19 ECC 173 (Cal) : (1988) 2 CHN 455 in which the learned Single Judge even though he found that only the sanction under Section 137(i) of the Customs Act was necessary he quashed the proceeding on the ground that the sanction was accorded for prosecution of the accused and that it was not a sanction for taking cognizance. In the result we are unable to hold that the sanction order issued by the Collector of Customs in this case under Section 137(1) Criminal Procedure Code [Customs Act] is in any way invalid. Therefore, the taking cognizance by the Learned Magistrate on the basis of such sanction order is not in our opinion invalid. As none of the c....