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Dhanraj Jain & Ors. v. B.K Biswas & Ors.
Judgment Summary — Sudhamay Basu, J. (with Chanda, J. concurring)
Factual and Procedural Background
This rule challenges an order dated 8 February 1975 of Shri R.N. Kali, learned Metropolitan Magistrate, 11th Court, Calcutta, which framed charges under S.5 of the Import & Export (Control) Act, 1947 read with S.120(B) IPC in case no. C/2140 of 1971. The complaint was filed on 23 September 1971 by Sri B.K. Biswas, Deputy Chief Controller of Imports and Exports, before the Chief Presidency Magistrate, alleging offences under S.5 of the Import & Export (Control) Act, 1947 read with S.120(B) IPC.
The complaint alleged that petitioners Dhanraj Jain and Sushil Kumar Jain were partners of D.R. Kumar Brothers (Calcutta) and Orient Trade Enterprises (Delhi), registered in 1964 as small scale industries, and that D.R. Kumar Brothers was registered under an Engineering Export production scheme subject to conditions requiring imported materials be utilised at the Haryana factory. Twelve import licences allegedly were issued to the firms between 25 March 1967 and 21 August 1968 on the condition that imported properties be used only in the Haryana factory. The complaint alleged that between 19 December 1967 and 19 December 1968 the accused sold imported zinc ingots to various parties instead of utilising them on actual user basis in the factory. The complaint listed many witnesses; after examining 23 witnesses the Metropolitan Magistrate framed charges. The present petition seeks quashing of the framing order and related proceedings.
Legal Issues Presented
- Whether the High Court can entertain a revisional application to quash an interlocutory order of framing charges in view of S.397(2) of the new Criminal Procedure Code (Cr. P.C.).
- Whether a revisional petition relating to trial proceedings pending when the new Criminal Procedure Code came into force should be governed by the old Code pursuant to S.484 (savings and repeal) or by the new Code.
- Whether the circumstances justify exercise of the court's inherent powers to quash proceedings on grounds that the complaint was not made by an authorised officer.
- Whether the evidence on record is so lacking (specifically as to accused Dhanraj Jain) that framing of charge should be quashed to prevent abuse of process.
Arguments of the Parties
Petitioner's (Mr. Dhar) Arguments
- Framing of charges is an interlocutory order, but despite that, revision should lie because the case/trial was pending when the new Cr. P.C. came into force, and thus the old Code should govern (relying on decisions of some High Courts).
- He relied on decisions (including D.N. Singh v. S. Sarma and Narayan Mahton v. Mahesh Prasad) to support application of the old Code to pending proceedings and to assert that revisional remedies available under the old law should continue.
- He contended the complaint related to a non-cognisable case and was not filed by an officer duly authorised to institute proceedings, so inherent powers should be exercised to quash.
- He argued there was no evidence against one petitioner (Dhanraj Jain) and relied on Kapoor v. State of Punjab (AIR 1960 SC 866) to contend that proceedings should be quashed to prevent abuse of process.
- He invoked State of Madras v. C.V. Parekh (AIR 1971 SC 447) to argue limits on finding partners liable and to challenge the justification for conspiracy charges; he asked the Court to consider whether conspiracy charge was warranted.
Other Party / Respondent Arguments
The opinion does not contain a detailed account of the respondent's separate legal arguments presented in opposition; the Court's findings and factual recitals address and dispose of the petitioner's contentions.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Biswanath Agarwala v. The State (1957 CHN 164; (1975) 2 CLJ 440) | Framing of charge is an interlocutory order. | The Court relied on this decision to support the proposition that framing of charge is interlocutory and therefore falls within the scope of S.397(2) which restricts revision against interlocutory orders. |
| D.N. Singh v. S. Sarma (1975 Cr. L.J. 1710) | Held by Madhya Pradesh High Court that appeals and revisions applicable to cases pending on 1 Apr 1974 would be governed by the old Code. | The Court criticised the reasoning, noting uncertainty in equating revision with appeal and declined to follow that approach for the present petition. |
| Narayan Mahton v. Mahesh Prasad (1975 Cr. L.J. 1400) | Patna High Court held an interlocutory order in a proceeding commenced under the old Code was not barred by S.397(2) because the proceeding commenced prior to the new Code and thus fell under S.484 savings. | The Court expressed inability to appreciate that reasoning and declined to accept the conclusion that the old Code should govern revisions of this type. |
| Baldev Singh v. The State of Punjab (1975 Cr. L.J. 1662) | Full Bench held that where investigation was not completed before the new Code, investigation should be continued/completed under the old Code by virtue of S.484(2a). | The Court accepted that proposition as clear law but found it not helpful to the petitioner's case (which concerned revision against an interlocutory charge-framing order). |
| S. Singh v. Inder Sain (1974 Cr. L.J. 1361) | Held that criminal revision is a discretionary remedy and the petitioner does not have a vested right to be heard on merits in revision proceedings. | The Court relied on this to support the view that revision is not a continuation of the old proceedings and is not a vested right, reinforcing that new Code provisions govern the revisional remedy. |
| Vehima Naik v. The State (Orissa High Court) (1975 Cr. L.J. 123) | Held that while the underlying proceeding commenced prior to new Code may fall under S.484(2A), a revision filed against an interlocutory order is governed by the new Code because the right to file revision is not vested. | The Court regarded this decision as supporting its view that revisional jurisdiction in respect of such applications should be exercised under the new Code (S.397 and S.401). |
| Bhupendra Kumar Bhatnagar v. The State (Delhi High Court) (1975 Cr. L.J. 1185) | Held that framing of charge does not determine guilt/innocence and is not a final order; therefore S.397(2) bars revision against such interlocutory orders. | The Court found this decision analogous and supportive of the conclusion that framing of charges is interlocutory and not amenable to revision under S.397(2) of the new Code. |
| Kapoor v. The State of Punjab (AIR 1960 SC 866) | Authority on quashing proceedings to prevent abuse of process of court. | The petitioner invoked this case to argue for quashing. The Court observed the authority but found, on the facts (existence of documentary evidence/assignments), that quashing was not warranted. |
| State of Madras v. C.V. Parekh (AIR 1971 SC 447) | Explains circumstances under which partners or directors may be held liable. | The petitioner relied on it to challenge partner liability; the Court held the authority was not of assistance at the framing stage as the hearing on merits had not yet occurred and consideration would be premature. |
Court's Reasoning and Analysis
The Court began by identifying S.397(2) of the new Criminal Procedure Code, which bars exercise of revisional power in relation to interlocutory orders. It treated the framing of charges as an interlocutory order (drawing on Biswanath Agarwala), meaning that ordinarily revision cannot be used to challenge such an order under the new Code.
Addressing the petitioner's primary contention that the old Cr. P.C. should govern revisions in trials that were pending when the new Code commenced, the Court analysed S.484 of the new Code (repeal and savings). The Court observed that S.484(2) lists five categories—appeal, application, trial, inquiry and investigation—that, if pending immediately before the new Code, are to be governed by the old Code. The Court noted that "appeal" is explicitly mentioned but "revision" is not, and that a revisional application is conceptually different from an appeal: it is an original application initiating a distinct proceeding and is discretionary, not a vested right.
On that basis the Court concluded that the revisional application before it was not a pending application within S.484(2) and therefore the new Code must apply. The Court expressly declined to follow the reasoning of the Madhya Pradesh and Patna High Court decisions cited by the petitioner, finding those authorities unpersuasive on the point.
The Court noted that its view found support in Orissa High Court authority (Vehima Naik) and in a Delhi High Court decision (Bhupendra Kumar Bhatnagar) which treated framing of charge as interlocutory and held such orders not amenable to revision under S.397(2).
Turning to the petitioner's alternative plea that inherent jurisdiction should be exercised because the complaint was not by an authorised officer, the Court examined the facts and the statutory authorisation. It found that the complaint was indeed filed by the Deputy Chief Controller of Imports & Exports and that by Government order No. 10/65 dated 1 December 1965, signed by the Chief Controller under S.6 of the Import & Export (Control) Act, 1947, the Deputy Chief Controller was authorised to make complaints in court for offences punishable under S.5 of the Act. Consequently the contention that the complaint lacked authorisation was rejected.
Regarding the submission that there was no evidence against Dhanraj Jain, the Court observed documentary and oral material on the record: Ext.21/1 (an application for licence) bore Dhanraj Jain's signature, and evidence of P.W.19 suggested certain articles were received by Dhanraj Jain; moreover he is a partner of the firm. On that basis, the Court concluded the available evidence did not warrant quashing at the framing stage.
The Court declined to examine the substantive principles governing partner liability (as in State of Madras v. C.V. Parekh) or the question of whether conspiracy charge could be justified, on the ground that such observations at the framing stage might prejudice the petitioner's position at the trial.
In summary, the Court held that (i) framing of charge is interlocutory and therefore not amenable to revision under S.397(2) of the new Cr. P.C., (ii) the revisional remedy is governed by the new Code as it is not a vested right or a "pending" application within S.484(2), (iii) the complaint was filed by an authorised officer so inherent jurisdiction was not triggered, and (iv) the evidence on record was sufficient to preclude quashing at the framing stage.
Holding and Implications
Holding: The petition challenging the framing of charges fails; the Rule is discharged. The Court ordered that the records be sent down as early as possible. Chanda, J. concurred and the concise order states: "Rule discharged."
Implications and immediate consequences:
- The impugned framing of charges remains intact and the criminal proceedings before the Metropolitan Magistrate will continue.
- The High Court will not entertain the revisional application under S.397(2) of the new Criminal Procedure Code where the impugned order is interlocutory (framing of charges).
- The Court refused to exercise inherent jurisdiction because the complaint was filed by an authorised officer under the statutory delegation and therefore there was no jurisdictional defect warranting quashing.
- The decision expressly distances itself from some High Court decisions (notably those of Madhya Pradesh and Patna relied upon by the petitioner) that treated revisions in pending matters as governed by the old Code; the Court applied the new Code to the revisional remedy and found support in existing authorities (Orissa and Delhi High Courts) to that effect.
This summary is based solely on the content of the provided opinion and does not add information beyond what the judgment records.
Sudhamay Basu, J.:—This rule relates to an order dated the 8th of February 1975, passed by Shri R.N Kali, learned Metropolitan Magistrate, 11th Court, Calcutta, framing charges under S. 5 of the Import & Export (Control) Act, 1947, read with S. 120(B) I.P.C against the accused petitioners in case no. C/2140 of 1971 and for quashing the proceedings in the said case.
2. It appears that Sri B.K Biswas, Deputy Chief Controller of Import and Export filed a complaint on 23.9.71 before the learned Chief Presidency Magistrate for some offences under S. 5 of the Import & Export (Control) Act, 1947, read with S. 120(B) I.P.C against the petitioners and another alleging that the petitioner Dhanraj Jain and Sushil Kumar Jain were the partners of D.R Kumar Brothers of P-10, New Howrah Bridge Approach Road, Calcutta, and of Orient Trade Enterprises, 2/78, Rupnagar, Delhi; both the firms being registered with Director of Industries, Haryana, in 1964 as small scale industries. The allegation further is that D.R Kumar Brothers was also registered under Engineering Export production scheme as manufacturers and exporters on the condition, inter alia, that the said firm would utilise imported materials as per terms and conditions of the licence. It is further alleged that twelve import licences were issued in favour of D.R Kumar Brothers and Orient Trade Enterprises between 25th of March, 1967, and 21st of August, 1968, on condition that the properties imported against the licences shall be utilised only in the factory at Haryana for production purposes and that no portion shall be sold or permitted to be utilised by any other party. It is further alleged that between 19.12.67 and 19.12.63 the accused sold the imported zinc ingots to different parties instead of utilising them in the production of Haryana factory on actual user basis. The petition of complaint contains the names of a large number of witnesses. After examining 23 witnesses the learned Metropolitan Magistrate framed charges against the petitioners. The said order and the proceedings are challenged in the present petition.
3. Mr. Dhar appearing in support of the rule urged a number of points. The first hurdle that faces him is the S. 397(2) of the new Criminal Procedure Code which provides that the power of revision shall not be exercised in relation to any interlocutory order. Framing of charges is nothing but written formulation of specific accusation and communicated to the accused so that he may defend himself. The controversy between the parties cannot be said to be finally set at rest by framing charges. We have already held in the case of Biswanath Agarwala v. The State reported in 1957 CHN 164 : (1975) 2 CLJ 440 that framing of charge is an interlocutory order.
4. Mr. Dhar then argued that the revision petition should be governed by the old Criminal Procedure Code since it relates to a trial which was pending when the new Criminal Procedure came into existence. In this connection he relied on three decisions. The first case he cited is that D.N Singh v. S. Sarma reported in 1975 Criminal Law Journal 1710. In that case it was held by a Division Bench of the Madhya Pradesh High Court that appeals and revisions applicable to cases pending on 1st of April, 1974, the trial of which was required to be held according to the provisions of the old Code will be governed by the old Code. The reasoning, it appears, is as follows:
“There is no doubt that procedure in law can be made to operate retrospectively in the sense so as to apply it to pending cases but where the legislature has made a specific provision that all pending cases will be governed by the old Code we are of the opinion that the old Code alone will apply in respect of appeals and revisions.”
It is not clear on what basis the appeals and revisions are placed in the same category. It is also not clear what is exactly meant by “cases.”
5. The next case cited by Mr. Dhar was Narayan Mahton v. Mahesh Prasad reported in 1975 Criminal Law Journal 1400. This was a decision of the Patna High Court in which an interlocutory order in relation to proceeding under S. 145 of the old Code was held to be not barred under S. 397(2) of the new Criminal Procedure Code, 1973. In that case proceedings initially commenced under S. 144 of the old Code on 7.3.1970 was converted into one under S. 145. An interlocutory order passed by the learned Magistrate was challenged in the High Court when an objection was taken under S. 397(2) Cr. P.C The High Court observed.
“Objection cannot be taken to be well founded. This proceeding having commenced in 1970 which was merged before coming into force of the new Code its disposal was to be effected under the old Code as provided under S. 484 of the new Code.”
With great respect we are unable to appreciate the reasoning which seems to be that since the revisional application relates to old proceeding commenced under the old Criminal Procedure Code the old Code should apply.
6. Another case cited before the Court was Baldev Singh v. The State of Punjab reported in 1975 Criminal Law Journal 1662. That was a case before a Full Bench of the Haryana and Punjab High Court. The case against the petitioner was registered eight days before the new Code came into force. The sanction for prosecution not having been obtained no final report had been filed in the trial court. The Court held that investigation of the case was not completed and that being so by virtue of S. 484(2a) of the new Code the investigation of the case against the petitioner should be continued and completed in accordance with the old Code. There is hardly any scope for dispute about the said proposition. But the same is hardly of assistance to the petitioner in this case.
7. Now, S. 484 of the new Criminal Procedure Code is as follows:—
“Section 484—Repeal and Savings— (1) The Code of Criminal Procedure, 1898 (v of 1898) is hereby repealed.
(2) Notwithstanding such repeal,—
(a) if, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898 (v of 1898), as in force immediately before such commencement, (hereinafter referred to as the old Code), as if this Code had not come into force:
Provided that every inquiry under Chapter XVIII of the old Code, which is pending at the commencement of this Code, shall be dealt with and dispossed of in accordance with the provisions of this Code;
(b)……………
(c)……………
(d)……………
It will be seen that sub-section (2a) mentions five categories of proceedings; (i) Appeal, (ii) Application, (iii) Trial, (iv) Enquiry and (v) Investigation. If any of these five categories was pending immediately before the date on which the new Code came into existence, the same will be governed by the old Code. Appeal is one of the five categories mentioned in the said sub-section. Revision as such is not mentioned there. The word ‘application’ also has no objective or adjunct added to it. It is not clear how a revision petition is sought to be made synonymous with an appeal in the Madhya Pradesh Case.
8. A revisional application, unlike an appeal, is not a continuation of the old proceedings to which it relates. The revisional application before us was not clearly pending when the new Code came into being. It is an original application initiating a proceeding. It relates to a pending trial but is neither a trial nor an appeal nor an enquiry or investigation which are referred to in S. 484(2). It is nothing but an application contemplated under the said section, and therefore, not being a pending one the new code has to apply in respect of the same. It is well known that revision is a discretionary remedy to which know litigant has a vested right. It was held in the case of S. Singh v. Inder Sain reported in 1974 Cr. L.J 1361 that in a criminal revision there is not even a right reposed in the petitioner to be heard on merit. The petition, therefore, cannot be said in any sense to be a continuation of the old proceedings. The contention of Mr. Dhar therefore must be negatived. With great respect we are unable to be pursuaded by two decisions of Madhya Pradesh and Patna High Court and constrained to differ from the same.
9. The view we have expressed above seems to be endorsed by a decision of the Orissa High Court (Vehima Naik v. The State reported in 1975 Cr. L.J 123.) The Court held on the facts of that case that the proceeding under S. 107 Cr. P.C which was initiated prior to the commencement of the new Code would be included under S. 484(2A) as it was pending on 1.4.74 when the new Code came into force. But a revision filed against the impugned order would be under the new Code as the right to file revision was not a vested right. The revisional jurisdiction would be exercised with reference to S. 397 and 401 of the new Code. In another case of the Delhi High Court, Bhupendra Kumar Bhatnagar v. The State reported in 1975 Cr. LJ 1185 in which facts were somewhat similar to the facts of the present case, the Delhi High Court held that framing of charge does not decide the question of guilty or innocence of the accused but merely keeps the proceedings alive and therefore, it was not a final order. It further held that by virtue of S. 397(2) of the new Code the powers of revision conferred on the court could not be exercised in relation to such an interlocutory order.
10. Mr. Dhar further contended that the circumstances of the case called for the exercise of inherent power of the Court. He submitted that the complaint which related to a non-cognisable case was not made by an officer who was duly authorised. But the said contention is not borne out by facts. The complaint, in fact, was initiated by Deputy Chief Controller of Exports and Imports. By an order No. 10/65, dated the 1st of December, 1965, signed by the Chief Controller of Imports & Exports, Ministry of Commerce, Import Trade Control, in exercise of the powers under S. 6 of the Import & Export (control) Act, 1947, the Central Government authorised, amongst others, the Deputy Chief Controller of Imports & Export to make complaints in writing in court in respect of offences punishable under S. 5 of the said Act. Mr. Dhar next argued that there was in fact no evidence against one of the petitioners namely, Dhanraj Jain and invoking the well known case of Kapoor v. The State of Punjab reported in AIR 1960 SC 866 he submitted that the Court should quash proceedings to prevent abuse of the process of court. According to him, the evidence tendered in this case does not warrant framing of the issues. We are, however, unable to accept his contention. It appears that Ext. 21/1 was an application for licence which was signed by Dhanraj Jain. It also transpires, amongst other things, from the evidence of P.W 19 that certain articles were also received by Dhanraj Jain. He is also a partner of the firm. Under such circumstances, we cannot hold that the framing of charge even needs to be quashed. Mr. Dhar laid considerable emphasis on the case of the State of Madras v. C.V Parekh reported in AIR 1971 SC 447 to point out under what circumstances a partner or director may be found guilty. The same case, however, is of no assistance to him inasmuch as the hearing in this case has not yet come to a conclusion. It is now only in the stage of framing of charge and the application of principles laid down in the said case would be premature. Mr. Dhar further argued under what circumstances the charge of conspiracy can be justified. It is not necessary for us to consider this question. Our observation at this stage might prejudice Mr. Dhar's clients. We will not go into details as the same may have a bearing on the question of merits of the case eventually. We are of the view that the framing of charge is an interlocutory order and the same cannot be quashed or interfered with under the revisional powers of the Court. In view of S. 397(2), we do not find that the learned Magistrate lacked any jurisdiction to pass the impugned order. The circumstances of this case does not call for the exercise of inherent powers of the Court.
11. The petition, therefore, must fail. The Rule is di charged.
12. The records may be sent down as early as possible.
Chanda, J.:—I agree.
Rule discharged.
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