NAVIN RAMJI KAMANI AND ORS. Vs. K.C. SHEKHARAN. DY. CHIEF CONTROLLER OF IMPORTS AND EXPORTS, NEW DELHI AND THE STATE OF RAJASTHAN

JUDGEMENT

(1.) The Dy. Chief Controller of Imports and Exports, Ministry of Commerce, Government of India, New Delhi, filed a complaint against the accused petitioners in the court of Additional Chief Judicial Magistrate First Class Jaipur, under Sec. 5 of the Imports and Exports (Control) Act, 1947, (hereinafter referred to as the Act). The Investigation in the case was made by the Special Police Establishment Fraud Squad (II), New Delhi under Chapter XII of the Criminal Procedure Code, 1973 The accused petitioners submitted two applications before the trial court on 2nd Jan. 1980, one for giving a direction that the prosecution should produce the police statements recorded by it during investigation and statements of the prosecution witnesses may not be recorded till the defence obtained photo state copies of such statements at their own expense. By another application it was prayed that the documents as per Annexure-'A filed along with the application may kindly be summoned from Shri Amar Singh Police Prosecutor S.P E. (C.B I.) and the same may be kept in court so that the accused petitioners may be in a position to obtain photostat copies thereof at their own expense. The learned Magistrate by his order dated 10th Dec. 1980 dismissed both the aforesaid applications. Aggrieved against the aforesaid orders of the learned Magistrate the petitioners submitted two petitions in this court under Sec. 482 Cr P.C one of these petitions SB Cr. Misc. Application No. 21/1981-came up for consideration before this court on 23rd Feb 1981. This court held that No. 2 direction can be given u/Sec. 173 Cr P.C. as it was not a case filed on police report but was instituted on a private complaint It was, however, held that as the statements of the prosecution witnesses were recorded under Sec. 161 Crimial P.C., the accused was entitled to get copies under the proviso to sub-Sec. (1) to Sec. 162 Crimial P.C. The second criminal miscellaneous application No. 30, 81 with regard to the documents has come up for consideration now. In order to decide the question raised in the petition it would be proper to narrate the facts.

(2.) The first information report in the case was lodged by Shri N.P. Naidu, M.P. with special Police Establishment (C.B.I.) at Delhi and regular case number RC/9/69/F.S.II dated 25th Aug., 1969, was registered. Thereafter an investigation was conducted by the Special Police establishment (C.B.I) and a detailed report was submitted in the office of Chief Controller of Imports and Exports that a case was made out against the accused petitioners. However, as no complaint directly could be filed by the police in view of the provisions of Sec. 6 of the Act, the Central Government authorised the Deputy Chief Controller, Imports and Exports, Ministry of Commerce Government of India, to file the present complaint. In the aforesaid circumstance the complaint was filed by the Deputy Chief Controller of Imports and Exports and along with the complaint a list of witnesses and list of documents were also filed. The list of witnesses Contained as many as 88 witnesses and the list of documents contained the particulars of 302 documents. It is undisputed that the trial of the case is conducted as the trial of summons case. The accused applicants submitted an application under section 91 read with Sec. 254 (2), Code of Criminal Procedure, 1973 on 2nd Jan., 1980 alleging therein that the prosecution itself realised the importance of the documents annexed with the complaint and as such permitted taking photo state copies of some of these documents. The prosecution also permitted inspection of some documents but obtaining of photo state copies was permitted with regard to only those documents which were seized from the Jaipur Metals an Electrical and not any other documents. It was further mentioned in the application that though a list of 302 documents was annexed with the complaint out of which 35 documents were relating to seizure/arrest memos, 4 documents were seized and copies of 15 documents were allowed to be obtained. As regard the remaining 248 documents, the accused applications gave a list of 124 documents which according to them were very relevant and material and were relied by the prosecution and it was very essential that those documents may be summoned so that the accused could inspect and obtain photo state copies thereof. It was also averred that no effective cross-examination could be possible unless those documents were summoned in the court and the accused petitioners were permitted to inspect and obtain photo state copies thereof, The learned trial court though placed reliance on a decision of this court State of Rajasthan Vs. Moti Singh and others. 1975 W.L.N 137 wherein it was held that the accused applicant was entitled to obtain these documents from the prosecution, but rejected the prayer on the ground that such prayer was disallowed by the court on previous occasions twice.

(3.) It is contended by Mr. Mathur, learned counsel for the applicants that the trial court on earlier occasions had not decided the question on merits and at one occasion the application was withdrawn by the accused petitioners themselves and on another occasion also the court never applied its mind on the merits of question. I may observe at this stage that I have already taken the view while disposing of another Misc Application No. 21/1981 on 3rd Feb., 1981 that the earlier applications were not considered by the Court on merits and the principle of res judicata in terms did not apply in criminal proceedings and as the earlier applications were not decided on merits the learned trial court was not justified in dismissing the application on this ground alone. The question thus remains for determination whether such direction as caught by the applicants can be given on merits or not.