D.B. BHAPPU Vs. PARASMAL NEMAJI BHIMANI

JUDGEMENT

(1.) THIS was originally a revision application which is now permitted to be converted into a writ petition under Articles 226 and 227 of the Constitution. The petitioner is the original complainant, Assistant Collector of Customs, Bombay, on whose complaint Criminal Case No. 279/CW of 1973 is pending before the Chief Metropolitan Magistrate. The petition seeks to challenge the legality and propriety of the order of the Chief Metropolitan Magistrate dated October 30, 1974 directing production in Court of the customs statements of witnesses and the documents on which they might be intending to rely in order to enable the defence advocate to inspect them and take down short notes or copies thereof. The application is opposed.

(2.) THE prosecution pending before the learned Magistrate is one under Section 135(7) and 135(ft)(6) of the Customs Act, 1962. As we have pointed out earlier, it is a prosecution commencing on a private complaint by the Assistant Collector of Customs. By about the time the complaint was reaching the stage of trial, the accused made an application dated June 12, 1974 before the learned Magistrate. The accused stated that it would be fair and just and equitable and in the interest of justice and necessary for conducting the defence properly that all the statements recorded, documents recovered and panchnamas made during the investigation in this case should be disclosed to the defence before the Court starts recording evidence in the case. It was, therefore, prayed that the prosecution be ordered to give inspection to the defence of all statements, panehnamas and documents recorded, made and recovered during the course of investigation in this case and the defence be permitted to make copies thereof before the recording of evidence begins. This application was opposed on behalf of the complainant by the special, public prosecutor Mr. Khandalawala.

(3.) SHRI Porus Mehta, learned Counsel for the accused respondent No. 1, raised a preliminary objection to the entertaining of Criminal Revision Application as such. According to him though the trial may be a pending trial on April 1, 1974 and may have to be concluded uiyler the provisions of the old Criminal Procedure Code, but so far as the filing of the revision application in respect of an interim order by the Magistrate is concerned, the provision of the Criminal Procedure Code, 1973 would apply. Sub -section (2) of Section 397 of the new Code lays down that powers of revision conferred by Sub -section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. It being so, this Court has no jurisdiction at all to entertain the revision application. That appeared to be a correct technical objection.