By virtue of Section 200 of Cr.P.C., exemption can only be provided to a public servant who files the case in his official capacity, however such exemptions is not available to other witnesses: Delhi High Court

 

By observing that the complaint filed in the present case was barred by limitation and the summoned order passed by the Court below was bad in law, the Delhi High Court allowed the petition filed under Section 482 of Cr.P.C.  for quashing of order dated March 5, 2014 passed by the Trial Court and to quash criminal  compliant case registered under Sections 132 and 135(1)(a) of the Customs Act, 1962 and also order dated July 29, 2016 passed by the ASJ, New Delhi. 

A Single- Bench of Justice Chandra Dhari Singh was of the opinion that in the present case the Court below passed the impugned summon order against the petitioners in the absence of any material being present on the record that could have prima facie made out the case against them. In view of the same, the impugned order was set aside and the petition filed by the petitioner under Section 482 of Cr.P.C. seeking quashing of the said order. 

The present petition was preferred under Section 482 of Cr.P.C. for quashing of order dated March 5, 2014 passed by the Trial Court and to quash criminal  compliant case registered under Sections 132 and 135(1)(a) of the Customs Act, 1962 and also order dated July 29, 2016 passed by the ASJ, New Delhi. 

Factual background of the case was such that on February 26, 2013, the respondent- Director of Revenue Intelligence instituted a criminal complaint case under Section 132 and 135 (1)(a) of the Act, before the learned Trial Court stating therein that intelligence reports have been received that M/s Elgin Electronics , of which the first petitioner was  the Proprietor and the second petitioner-  Manager, was in the business of importing public address systems, sound systems for auditorium etc. without payment of customs duty.

In pursuance of the same, search was conducted on July 13 , 2009 by the DRI at the premises of the firm. At the time of investigation, it was found that the retail invoices raised by the firm were found to be fake. Thus, through investigations it was discovered that the accused persons committed offences punishable under Sections 132 and 135(1)(a) of the Act. 

Consequently, the Trial Court through order dated March 5, 2014 issued summons to the accused persons/ petitioners, dispensing the complainant of examination.  Aggrieved by the same, the petitioners challenged the criminal revision before the Additional Sessions Judge.  However, through order dated July, 29, 2016, the aforesaid criminal revision was dismissed by the Revisional Court. Hence, the present Criminal Petition under Section 482 of Cr.P.C. was preferred by the petitioners. 

After hearing the submissions from both the sides, the question that  stemmed from the facts before the present Court was whether it can be inferred from the facts and circumstances stated above that the Court below passed the impugned order of summoning the petitioners without taking due consideration of the material as well as the provisions of the statue. 

While answering the same, the Court  took into account the relevant portions of the impugned order and the provisions of the statue. In view of the same, the Court opined that in the instant case there was nothing to show that the petitioners made any false declaration or made made any false documents and therefore the petitioners cannot be held liable under Section 132 of the Customs Act. It was further observed that in the present case, indeed the complainant was barred by limitation. As the provisions of Section 132 of the Act if imposed could be extended till six months and the limitation period in the instinct case as provided under Section 468 of Cr.P.C. was only 1 year. 

With respect to exemption granted to the second respondent, the Court observed that at the stage of Section 200 of Cr.P.C., exemption can only be provided to a public servant who files the case in his official capacity, however such exemption is not available with other witnesses, the Court noted. It was further stated that the second respondent was obligated to prove its case and produce sufficient evidence on record against the petitioners. Thus, the Court summoned the petitioner without any material record for prima facie satisfaction, the Court submitted. 

In furtherance to the above observations, the Court stated that the impugned order was bad in law as the Court passed the summon order without any material being present on record which could have prima facie framed the case against the petitioners. It was further stated that the complaint was also barred by limitation. Additionally, the  prosecution could have not initiated under Section 135 (1) (a) of the Act as valuation of goods was less than 1 crore, thus the sanction passed by the Additional Director for prosecution was invalid and void- ab initio. 

Thus, in light of the aforesaid observations, the Court observed that the impugned orders passed by the Courts below on account of being bad in law were quashed and set aside. Accordingly, the criminal complaint instituted under Section 132 and 135(1)(a) of the Customs Act and all proceedings emanating therefrom were hereby quashed. Hence, the present appeal was allowed. 

Case name: SURESH CHAND GUPTA AND ANR. Vs. STATE OF GOVT. OF NCT DELHI AND ANR. 

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