ELECTRICAL MANUFACTURING COMPANY LIMITED Vs. D D BHARGAVA

JUDGEMENT

(1.) The sole point which arises for consideration, in this appeal by special leave, directed against the order of the High Court of Delhi dated November 21, l966, is about the validity of the complaint filed by the Deputy Chief Controller of Imports and Exports, New Delhi, the respondent herein under Section 5 read with Section 6 of the Imports and Exports (Control) Act, 1947 (Act XVIII of 1947) (hereinafter referred to as the Act) . Section 6 of the Act, relating to cognizance of offences, is as follows:

(2.) The respondent filed a complaint, on December 31, 1962, before the First Class Magistrate, Delhi, alleging that the appellants, before us, and four others, had committed offences punishable under Section 120 B, read with Section 420, I. P. C., and Section 5 of the Act. The complaint, fairly elaborately, sets out the various matters containing allegations of violations of the conditions of the import licenses granted to the appellants. It may also be stated, at this stage, that the Chief Commissioner Delhi by his order dated December 12, 1962, had given his consent to the initiation of proceedings, in the prosecution of the appellant and four others, mentioned therein, under, sub-section (2) of Section 196-A of the Code of Criminal Procedure (hereinafter called the Code) , inasmuch as the complaint also involved an offence of criminal conspiracy, under Section 120 B, I. P. C., to commit a non-cognizable offence. So far as this consent is concerned, it is not the subject of any attack, before us. 2A. The complainant was examined as P. W. 3. He has stated, in his chief-examination, that he filed the complaint, in question, after satisfying himself about the prime facie commission of the offences, mentioned in the complaint. In cross-examination he has referred to the fact that he came to know about the case when he received a report from the Special Police Establishment, at the end of September 1962. When a question was put, as to whether the complainant would produce the said report objection was raised, by the Public Prosecutor that the said report was only the opinion of a police officer, and was not admissible, in law. This objection has been upheld by the Magistrate. The complainant has further stated that he visited the Special Police Establishment Office, for the first time, in connection with the case, only in September or October 1963, whereas the complaint has been filed, on December 31, 1962. He has also stated that he has not seen any of the documents, referred to in the police report, between the date when he received the report, and the date when the complaint was filed. He has further stated that, on receipt of summons from the Court, he visited the Special Police Establishment Office to see the documents, for satisfying himself that the complaint which he had filed, was based on absolute fact. His further answers were to the effect that when he filed the complaint, he had not verified personally all the details mentioned in the police report, and that the Chief Commissioner's permission, to initiate proceedings, had already been obtained, when he signed the complaint, on December 29, 1962. But he has also stated that he had asked the Special Police Establishment, to draft the complaint.

(3.) The appellant filed an application, on September 26, 1964, before the Trial Magistrate, stating that, in view of the above answers given, by the complainant, no cognizance should be taken, on the basis of the complaint filed by the respondent, Shri Bhargava, the Deputy Chief Controller of Imports and Exports. According to the appellant Section 6 of the Act is mandatory in character and enjoins that the entire facts and materials, connected with the allegations, which form the subject of the charge or charges, must be placed before the competent authority, and the complaint is to be initiated by the appropriate authority, only after due consideration of the entire materials. In this case, according to the appellant, the answers given by the Officer, as P. W. 3, coupled with the non-production of the Special Police Establishment's report, will clearly show that the facts constituting the offence were not placed before him and it is also clear that the complainant has not filed the complaint, after verifying and satisfying himself about the facts mentioned in the police report. As to what is contained in the police report, is a matter of pure conjecture, inasmuch as it has not been produced, before the Court.