BASHIR HUSSAIN PESHIMAM Vs. GULAM MOHOMED ISMAIL PESHIMAM

JUDGEMENT

(1.) THIS criminal revision application has been preferred by the petitioners bashir Hussesin Peshimn against the order passed by the learned presidency Magistrate 28th Court, Esplanades, Bombay on 5t February 1965, whereby the learned Magistrate rejected the application of petitioners for a direction that the special prosecutor or the collectors of the central Excise be directed to furnish him with copies of certain statements and documents in their possession or in the alternative to issue a summons under S. 94 of the Criminal procedure code, directing the special prosecutor or the collectors, of central excise to produce such statement, nd documents for his inspection before the inquiry started.

(2.) THE facts giving rise to the application made by the petitioner to the learned magistrate and the order passed by the learned Magistrate thereon may be state, on 3rd August 1964, Shri H. R. Jokhi Assistant collectors of central Excise Marine Preventive Division Central Excise Bombay filed a compliant [being Criminal Case No. 203/w/64] in the court of the learned presidency Magistrate [28th Court, Esplanade, Bombay] Charging the petitioners Bashir Hussesin peshimam [being Accused No. 1] and 8 others under S. 120b of the I. P. C. read with S. 167[81] of the Sea customs Act 1878 as amended, under Ss. 167 [81] of the Sea custom and Ss. 109 and 114 I. P. C. under 8[1] and 23 of the Foreign Exchange Regulation Act and under S. 120-B I. P. C. read with Ss. 8[1] and 23 of the Foreign Exchanges Regulation Act reset of 77,600 tolls of gold brought into India at Bombay from pales outside India between July 1960 nd March 1962, in pursuance's to conspiracy it appears that prior to the legging of this implant against the petitioners and 8 others under directions of Shri H. R. Jokhi investigation had been carried on the several customs officers and during the course of such investigation, statement of various persons including those of caused were recorded. Similarly those several documents and papers were seize under panchanamas. Inter alia on 10th February 1962 the houses of the Accused No. 1 and seized from the houses of accused NO. 2 while a motor car bearing Registrant by Mr. Gumaste was seized from near the house petitioner had No documents as such were seized from either of them or from any other accused during the investigation. If further appears that during the course of this investigation reports of the from time to time and notes or notes - sheets in respect thereof submitted by the interior officers to their superior officers. Accused No. 1 was arrested on 22nd February 1962, accused No. 2 was arrested on 3rd march 1962, accused No. 5 was arrest on 14th March 1962, while accused Nos. 3 and 4 were arrested on 19th April 1962. Accused Nos. , 6 and 7 were required to remain present in court on 3rd August 196, when the complaint was filed and they were put under arrest on that day. Accused Nos. 8 and 9 are still absconding. It further appears that before filling the complaint, adjudication proceedings for confiscation of the gold were undertaken for shows causes notices were issued and served open some of the accused and in particular upon the petitioner, in which diverse allegations up were made against the petitioners and in the correspondences that ensued between the petitioner and / or his Advocate on the one hand and the Customs Authorities and / or their Advocate on the one hand the customs Authorities and / or their Advocate on the others, a request was made on behalf of the petitioner that he should be on furnished with copies of all the statements of person that had been seized during the course of investigation to ennoble him to show cause why the gold or the motor car should not be confiscated but that request was not acceded to. It further appears that even after his compliant was filed the petitioner through his Advocates letter dated 17th September 1964 inter alia requested for furnishing of copies of all the statements of persons recorded and of documents and papers seized including the reports and nothings made by the Customs officers and offered to pay the necessary charges therefor. By his reply dated 22nd September 1964, Shri Adi. P. Gandi the learned advocate [whose appears as the special prosecutor in the case] stated that the petitioners was not entitled to the copies of any statements, documents etc. At that stage but without prejudice to that contention it was made clear in the said reply that the statements of such of the witnesses on which the prosecution would reply, would be tendered in evidence by way of the corroboration at the time when the evidence would e lad an that such of the statement of the witnesses called, on which the prosecution would not reply byway of corrobation would be made available to the petitioner on his asking the for the same at the that the documents on which the prosecution would reply would be tendered at the time of leading evidence and it would be open to the petitioners to see those documents at that time for the purpose of cross - examination. In other words, the request for copies of statement and documents beforehand was turned down.

(3.) THEREAFTER on 4th January 1965, the petitioner made an application to the learned Magistrate for two reliefs viz. : [a] to direct the special Prosecutor or the collectors of central Excise him with the copies of the statements o various witnesses whom the prosecution was going to examine and of the documents of which the prosecution was going to rely including the statement of accused persons as well as the nothings, note sheets and report of central Excise officers made during the course of the investigation. [b] in the alternative, to issue a summons under section 94 of the Criminal procedure code, directing the special prosecutor or the collectors of central excise to produce in court before the inquiry starts the statements was of various witnesses whom the prosecution was going over to examine as well as the nothings, f note - sheets nd the reports of the central Excise officer made during the course of the investigate of the case". The first relied was sought by the petitioners on the ground that thought the complaint had been filed as a private complaint, the complainant was public officer [being the central Excise officer] and as such enjoyed all the power which to interrogate, arrest and carry out searches and that, therefore the compliant filed by him should not be treat as a private complaint and therefore under the provision of section 173[4] of the Criminal procedure code, which would be applicable he was entitled, before the commencement of the inquiry, to get the copies of the all the statement on which the recorded and of al the documents on which the prosecution proposed to rely, including the statements of accused persons and even the nothings note - sheets and reports of the Central Excise officers, in order to enable him to properly mound his defense and instruct that in case the courts held that the him. In the alternative, the petitioner averred that in case the court held that the complaint lodged by the central Excise officer was a private complaint and not a complaint logged by any police officer, in the interest of justice and fair trial, he should be refurbished with the copies of all the aforesaid be statements and documents on which the prosecution was going to rely on the principles analogous to the Principe contained in section 173[4] of the criminal procedure code. In further alternative the petitioner averred that if the copies of all this statement of and documents could not be furnished to him as prayed for either under the provisions of section 173[4] of the criminal procedure code or in principles analogous to the principle contained in that section, the court should exercise its power under section 94 of the criminal procedure code by issuing a summons directing the special prosecutor the collector of Central Excise, to produce in theocrat before the inquiry starts the aforesaid statements and documents. On behalf of the prosecution, a reply wassailed on 11th January 1965, wherein the was contended that the petitioner's application was misconceived inasmuch as section 173[4] of the criminal procedure code was not applicable to the facts of the case an that the copies of the statements furnished to the petitioner in the interest to justice and fair trial on principles analogous to the principle contained in section 173[4] of the criminal procedure code. It was pointed out that the investigation that had proceeded the lodging of the complaint was not carried on by any police officer under Chapter XIV of the Criminal Procedure code, and as such the provisions of section 173[4] of the Criminal procedure of code were inapplicable and further it was a warrant case instituted otherwise then on a police report, and therefore the procedure a enacted in section 252 to 259 under Chapter XXI of the Criminal Procedure code was a applicable and there was no provision in those section for furnishing copies of such statements any documents on which the prosecution wanted and documents on which the procedure code, no order directing the furnishing of the copies of the statement and documents to the petitioner could be made on principles of analogous to the provision of Section 173[4] of the criminal procedure of Code. As regards the scope of section 94 of the criminal procedure code was berry limited and it was not open to the petitioners to apply for an issue of an omnibus summons for the apply for an issue of statements off witness and of all documents seize during the investigation including the nothings, note = sheets and report made by the central Excise Officers. It was also contended that the stage at which such on application was made by the petitioner there were no material placed before the learned magistrate from which the learned Magistrate could come to the conclusion that production of all such statements and documents was either necessary or desirable for the purpose of the inquiry and the learned magistrate should not exercise his discretion of the favor o the petitioner. The learned Magistrate after hearing the arguments on the both the side took the view of the that the petitioner was not entitled to get copies of all the statement of the witnesses and of all the documents of which the prosecute of wanted to the rely before the inquiry commenced. He held that the provision of section 173 [4] of the criminal procedure code were not applicable to the facts of the case, instituted otherwise than upon a police repair. He further negative the petitioners contention that copies of the statements of witnesses and the documents on which the prosecution of the wanted rely should be order to the given to the petitioners in the interest of justice of and fair to trail on he grounds analogous to justice and fair trial l on the grounds analogous of S. 173[4] of the Criminal of P. C. as his view parliament while amending the criminal procedure code by act XXVI of 1955 had deemed it expedient to provide for two separate and filed otherwise than on police repairs, and to the cases instituted otherwise than on police repress would result in removing the said distinction in the said procedures and it would be an action against the scheme of the criminal procedure code itself regarding the petitioners prayers offer issue of summons under section 94 of the criminal procedure code the learned Magistrate took the view of that the inquiry had not even commenced before him when the application was preferred to by the petitioners and hence was there was absolutely no material before him at stage to determine the necessity or him desirability of summons begin issued under section 94, especially when the application was not for a particular documents or a things but nor for was for all documents statements and of witness statements o the accused and nothings, note sheets and reports etc. He further held that the only use that could be made of any previous statement of a witness was either for the purpose of corroboration or contradiction and nothing more and since the learned special prosecutor had offered to make all previous the statements more witness or was either for the purpose of corroboration or contradiction and nothings more and since the learned special prosecutor had officer to make all previous of the statement of such of the person who were going to the be examined as production witnesses in the case available as to the defense after examination in chief of each one was over and since the special prosecutors had further offered to make available to the defense all such documents on which the prosecution of wanted rely at the time when they would be tendered while leading evidence there was no question of any prejudice being caused to the petitioner or the other accused in their defense and as such no case had been made out the by the petitioner for the exercise of the discretion vested in the court under section 94 of the criminal procedure code. In this view of the matter the learned Magistrate rejected the petitioner application on 5th February 1965. The petitioner has come in revision against the said order.