S.245(2) CrPC | Magistrate's Power To Discharge Accused "At Any Previous Stage" Of Case Means Stage At Which Cognizance Is Taken By Court: Madras HC

Justice Bharatha Chakravarthy observed as under:

"The phrase "at any previous stage of the case" means a case on file with cognizance being taken , as otherwise, there cannot be a 'discharge' from the case. Therefore, I am of the view that in this case, the stage of Section 200 of Cr.P.C., itself has not commenced and even before that such application (discharge) cannot be filed."

In the present case, the respondent/ first accused, who was running a security agency authorised by the Airports Authority of India, through his employees had helped in bringing gold bars in the cover of mobile phones from the Cargo shed inside the Airport out of the customs frontier and thus colluded, conspired and committed the offenses punishable under Section 132, 135 of Customs Act, 1962. Based on this, a Private Complaint was filed before the Special Court for Customs.

The private complaint was adjourned under the caption as to be "check and call on". Even before the complaint was taken on file or it could be numbered, the accused moved an application for dropping proceedings which was allowed.

The respondent/accused had contended in his petition that with respect to the offence under Section 132 of the Customs Act, the Appellate Authority had already held that as far as the allegations against the Accused No. 1 is concerned, he is not an importer and there was no any omission or commission on the part of the accused/respondent in making mis-declaration and he cannot be penalized for such mis-declaration or evasion of duty. Thus, the penalty imposed under Section 114 (AA) of the Customs Act is unsustainable. With respect to the offence under Section 135(1)(b) concerned with carrying, removing, concealing or dealing with the goods, the corresponding provision for levy of penalty is Section 112(b). The appellant authority had held that the penalty under Section 112(b) is unsustainable as against the accused/appellant and as a matter of fact, ordered that the penalty should be imposed as under Section 112(a).

Thus, he contended that the offences alleged had already been dealt with on merits by the Appellant Authority and have become final.

He had also contended that since the matter was being investigated by the Directorate of Revenue Intelligence, sanction had to be obtained from Director General as per circulars and therefore, for want of sanction as per the circulars of the department, the proceedings are liable to be dropped.

The revision petitioner contended that the application for dropping charges was premature as the Magistrate was yet to take cognizance of the case. During the pre cognizance stage, the accused has no say. As far as the circular was concerned, the same were binding on the petitioner and could not be made use of by the Respondent. The Petitioner had, in fact, obtained prior sanction from the Commissioner and the DGRI. Further, the decision of the Appellant Authority was not on merits so as to bind the criminal courts.

The main question before the court was thus to identify if the phrase "at any previous stage of case" would include the "check and call" stage of the complaint where the Magistrate has not even taken cognizance of the complaint.

In Ajoy Kumar Ghose v. State of Jharkhand, the Supreme Court had held that the previous stage would mean from Sections 200 to 204 CrPC and till the completion of the evidence of prosecution under Section 244 CrPC. Thus, "previous stage" was from when the Magistrate took cognizance of the offence. Answering on what would constitute as taking cognizance, the court opined that the same would be the stage where the Magistrate takes authoritative notice of the allegations made in the complaint.

In the present case, on presentation of complaint, without taking any authoritative notice, the case was merely adjourned with the endorsement "check and call". Neither the complaint is numbered nor the sworn statement is recorded. This is the stage, in which the form of the complaint is being looked into before taking notice of any kind of the allegations in the complaint.

Thus, the court opined that the stage of Section 200 CrPC had not commenced and at such a stage an application for discharge could not be filed. The court thus directed the Magistrate to proceed with the complaint in accordance with law and gave liberty to the complainant to file a discharge application after the Magistrate had taken cognizance of the offence

Case Title: The Assistant Commissioner of Customs v. S Ganesan

Case No: Crl.R.C.No.372 of 2022

Citation: 2022 LiveLaw (Mad) 310

Counsel for the Petitioner: Mr. N.P.Kumar, Special Public Prosecutor, Central Government

Counsel for the Respondent: Mr. S.Ganesan (Party-in-Person)