S.N.BANERJEE Vs. BABULAL GUPTA

JUDGEMENT

(1.) This appeal by special leave which is directed against a judgment dated May 6, 1970 of the High Court of Calcutta has arisen in the following circumstances. On March 2, 1963, Shri S. N. Banerjee, Assistant Collector of Custom, Calcutta, made an application to the Chief Presidency Magistrate, Calcutta, praying that consent be given under section 196 -A of the Code of Criminal Procedure, 1898 (hereinafter called the Code) to the prosecution of 14 persons in respect of an offence under section 12C -B of the Indian Penal Code as they were guilty of a conspiracy to commit offences under item 81 of the Schedule to section 167 of the Sea Customs Act (hereinafter referred to as the Act) and section 5 of the Imports and Exports (Control) Act (the Control Act, for short;. The application was granted on March 5, 1963 when the Chief Presidency Magistrate accorded the consent asked for. Four days later, i.e., on March 9, 1963, Shri Banerjee was authorised by the Chief Customs Officer, Calcutta, to prosecute the said person for the commission of offences under item 81 and section 5 above mentioned. On the same date, i. e., March 9, 1963, Shri Banerjee actually filed a complaint against the said 14 persons accusing them of the commission of offences under section 120 -B of the Indian Penal Code and item 81 as well as section 5 aforesaid. After the Presidency Magistrate, who was seized of the case, had examined 43 witnesses, one of the accused challenged his jurisdiction to entertain the complaint through a petition made to the High Court under sections 439 and 561 -A of the Code on the ground that the Chief Presidency Magistrate had no power to give the consent which he did on March 5, 1963, because till that date, Shri Banerjee was not as officer holding the authorisation envisaged in Sec. 187 -A of the Act. The petition stated that the Chief Presidency Magistrate could not act under the provisions of section 196 -A of the Code unless an application was made to him in that behalf by a person holding such an authorisations; The High Court accepted the contention of the petitioner before it with the following observations: ".........The requirement of authorisation under section 187 -A Sea Customs Act.........to enable a Court to take cognizance attaches to sanction under section 196 -A Cr. P. C. as the allegations made or the charge framed is in respect of one offence and sanction granted by the Chief Presidency Magistrate at the instance of S. N. Banerjee, who was not authorised to initiate proceedings is therefore bad in law, as the officer had no authority to apply for sanction." ".........Obviously, for an offence of the nature charged, there can be only one cognizance and therefore the sanction under section 120 -B must also be obtained by an Officer mentioned in section 187 -A Sea Customs Act...... An argument put forward on behalf of Shri Banerjee that section 196 -A of the Code did not speak of any authorisation was repelled by the High Court in the following terms : "Mr. Mitra has also submitted that not only section 196 -A does not speak of any authority but that even after sanction, prosecution may not be initiated. This, in our view, is over -implication of the matter. Prosecution has been initiated and therefore, this court has to decide whether the magistrate is authorised under the law to take cognizance, without sanction under section 196 -A being obtained by person competent to initiate proceeding,

(2.) On behalf of Shri Banerjee, who is the appellant before us, it has been urged that the High Court has erred in interpreting section 196 -A of the Code so as to incorporate therein the provision regarding authorisation enacted by section 167 -A of the Act, and, after hearing learned counsel for parties, we find ourselves in complete agreement with him for the reasons which follow.

(3.) The two sections requiring interpretation by us are reproduced below: Section 196 -A of the Code "No Court shall take cognizance of the offence of criminal conspiracy punishable under section 120 -B of the Indian Penal Code - (1) in a case where the object of the conspiracy is to commit either an illegal act other than an offence, or a legal act by illegal means, or an offence to which the provisions of section 196 apply, unless upon complaint made by order or under authority from the State Government or some officer empowered by tfie State Government in this behalf, or (2) in a case where the object of the conspiracy is to commit any non -cognizable offence not punishable with the death, imprisonment for life or rigorous imprisonment for a term of two years or a Chief Presidency Magistrate or District Magistrate empowered in this behalf by the State Government has, by order in writing, consented to the initiation of the proceedings. Provided that where the criminal conspiracy is one to which the provisions of sub -section (4) of section 195 apply no such consent shall be necessary." Section 187 -A of the Act "Cognizance of offences. -No court shall take cognizance of any offence relating to smuggling of goods punishable under item 81 of the Schedule to section 167, except upon complaint in writing made by the Chief Custom Officer or any other officer of Customs not lower in rank than an assistant collector of Customs authorised in this behalf by the Chief Customs Officers." There is a corresponding section in the Control Act which, according to the High Court provides for a similar bar against the taking of cognizance of complaints by Courts but to which we shall no longer advert as arguments were not addressed to us in relation thereto by learned counsel for either party.