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PETITIONER: S. P. E. MADRAS

       Vs.

RESPONDENT: K.V.SUNDARAVELU

DATE OF JUDGMENT08/03/1978

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. FAZALALI, SYED MURTAZA

CITATION:  1978 AIR 1017            1978 SCR  (3) 460  1978 SCC  (2) 514

ACT: Criminal Procedure Code (Act V), 1898, Section 215-Committal orders  can be quashed by the High Court only on a point  of law,  Limitation for taking cognizance  of  offence-Evidence Act (Act 1), 1872, Sections 40 to 44, relevancy of  previous judgment.

HEADNOTE: The  respondent who was charged of offences  under  sections 420, 471 read with section 466 Indian Penal Code and Section 132  of Customs Act was committed to the Court of  Sessions. The offence related to alleged tampering with seals  affixed by  the Textile Inspector on the bales  containing  handloom fabric known as "Bleeding Madras".  The Court split the case into two so that Sessions Case No. 34/68 was registered  for the  trial  of the offence relating to 93 bales  which  were covered  by  a particular invoice and Sessions Case  No.  2/ 1970 was registered for the goods relating to 19 bales which were  covered by a different invoice.  Sessions Case  34  of 1968  ended  in  conviction of the respondent,  but,  on  an appeal  the High Court acquitted him giving him the  benefit of doubt.  When the second care was taken up for trial,  the respondent  moved  the  High  Court  under  section  215  of Criminal   Procedure   Code,   1898,   for   quashing    the "proceedings".   The  High  Court  allowed  the  application holding  (1)  that  the evidence in  both  the  cases  being similar  and  one case having ended  in  acquittal,  further prosecution in the present case would amount to abuse of the process  of  the  Court; (ii)  even  otherwise  the  alleged offences were committed somewhere in 1965 and it would  be unfair, if not unjust, to put the petitioner on trial  after about  ten years and (iii) the charges were "not  likely  to stand". Allowing the appeal by special leave, the Court HELD  : The trial of the case had not started and there  was no  justification for taking the view that evidence in  both the  cases was similar.  Moreover it is not the  requirement of  law that if one case has ended in acquittal  prosecution in  another case would be illegal.  So also it could not  be said  that the High Court’s opinion that the charge was  not likely  to stand the trial was on a point of law within  the meaning of section 215.  The High Court therefore lost sight

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of  its  limitation  under  section  215  and  quashed   the "Proceedings"  for  reasons which were  extraneous  to  that section. [463 A-B] The  High Court took its earlier judgment in  Sessions  Case No.   34  of  1968  into  consideration  in   reaching   its conclusion.   Here again it lost sight of the provisions  of sections  40  to  44 of the Evidence  Act  which  state  the circumstances  of which previous judgments are  relevant  in civil  and criminal cases.- The judgment in S.C. No.  34  of 1968 was clearly "irrelevant" under those provisions. 463 C, D. F] In  fact it was not in controversy that Sessions Case No.  2 of 1970 concerned the trial of the respondent in respect  of 19  bales  which  formed  the  subject  matter  of  separate invoices and of which the goods were inspected on  different lates.   It  was  also not  controverted  that  a  different officer inspected three of those bales and found them to  be substandard  goods and they were not the subject  matter  of the trial in case No. 34 of 1968. [464 A-B]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION Criminal Appeal No. 375  of 1976. 461 (Appeal by Special Leave from the Judgment and Order dt.  4- 12-75 of the Madras High Court in Crl.  Misc.  Petition  No. 1029/ 75). H. S. Marwah.& R. N. Sachthey for the Appellant. S.  Goindswaminadhan, I. Subramanium, Veena Devi Khanna  and K. Rajindra Chowdhary for the Respondent. The  Judgment of the Court was deliverd by SHINGHAL J.-This appeal by special leave is directed against the  judgment  of the Madras High Court  dated  December  4, 1975,  quashing the "proceedings pending in S. C. No.  2  of 1970  on  the file of the First  Assistant  Sessions  Judge, Madras."  The  facts  giving rise to the  appeal  have  been stated  in the petition for special leave and have not  been disputed. Respondent  K.  V.  Sundaravelu carried on  business  as  an exporter  in Madras.  He had a quota for the export  of  the handloom  fabric known as "Bleeding Madras" for  the  period April  1,  1965  to  March 31, 1966.   It  was  one  of  the conditions of this export licence that he should produce the goods  for  pro-shipment  inspection  by  officers  ,of  the Textile  Committee who had the authority to affix the  ’date seals,   monogram  seals  and  the  quality  marking   seals containing  the trade mark of the All India Handloom  Board. The  seals were affixed by the concerned  Textile  Inspector after random inspection of the quality of the fabric.   Such an  inspection was made in July 1965, the fabric was put  in bales,  and  the bales were sealed with lead seal.   It  was found,  on  a fresh Inspection of one of  the  bales  before actual loading, that the inside seals had been tampered with and  there  were  forged  date  seals.   The  shipment   was therefore  stopped and all the goods were  examined  between July  27,  1965 and- July 30, 1965. As  the  respondent  was found  to  have committed offences under sections  420,  471 read  with section 466 of the Indian Penal Code and  section 132  of  the  Customs  Act he  was  charge-sheeted  and  was committed  to  the  Court of  Session  after  the  necessary inquiry.   The  Court  split  the case  into  two,  so  that Sessions Case No. 34 of 1968 was registered for the trial of the  offence  relating to 93 bales which were covered  by  a

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particular  invoice,  and Sessions Case No. 2  of  1970  was registered  for  the goods relating to 19 bales  which  were covered by a different invoice.  The first case (S.C. No. 34 of  1968) proceeded to trial and ended in the conviction  of the  respondent.  He was however given the benefit of  doubt on  appeal  and was acquitted by the judgment  of  the  High Court  dated March 9, 1974.  The second case (S.C. No. 2  of 1970),  which is the subject matter of the  present  appeal, was then taken up for trial by the First Assistant  Sessions Judge, Madras.  The respondent applied to the High Court for quashing the "proceedings".  As has been stated, his  appli- cation  was  allowed by the High Court and  the  proceedings have been quashed by the impugned judgment. It was urged before the High Court that Sessions Case No.  2 of 1970 was different from the earlier case (S.C. No. 34  of 1968) and 12-L277SCI/78 462 should  be allowed to proceed to trial, but the  High  Court thought  it  proper  to  go through  the  record  which  was received  from  the court of the committing  magistrate  and took  the view that the present case was "substantially  the same  as the other case which ended in acquittal." In  doing so  it made a reference to its finding in the  earlier  case and held as follows,-               "I  have  found  in the other  case  that  the               substitution could not have been subsequent to               the baling of the cloth pieces as contended by               the prosecution, and acquitted the  petitioner               therein.   The same point arises in this  case               as  it  is found in this case  also  that  the               prosecution  has  come forward with  the  case               that  the substitution was. subsequent to  the               baling.   So,  on  these  broad  aspects,  the               evidence in both these cases being similar and               one  case having ended in  acquittal,  further               prosecution  of  the petitioner in  this  case               will   amount  to  abuse  of  process.    Even               otherwise,  the alleged offenses were said  to               have been committed somewhere in 1965, namely,               about ten years ago and it would be unfair, if               not unjust to put the petitioners on trial  on               the charge which, in my opinion, is not likely               to stand." It is not disputed that the case was committed to the  Court of  Session before April 1, 1974, when the Code of  Criminal Procedure, 1973, came into force.  It is also not in dispute that  by virtue of section 484(2) of that Code, the  pending trial  of  the  respondent in the  Court  of  the  Assistant Sessions Judge had to be disposed of in accordance with  the provisions of the Code of Criminal Procedure, 1898 and  that the respondent’s application to the High Court for  quashing the commitment had also to be disposed of in accordance with the  provisions of section 215 of that Code.   That  section provided as follows.-               "215.   A commitment once made  under  section               213 by a competent Magistrate or by a Civil or               Revenue  Court  under  section  478,  can   be               quashed by the High Court only, and only on  a               point of law." So, as the case had already been committed by the  competent Magistrate, the commitment could be quashed only on a  point of law. A reading of the impugned judgment shows that the High Court has  quashed the proceedings in the Court of  the  Assistant

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Sessions Judge for three reasons,-               (i)  the  evidence  in  both  the  case  being               similar   and   one  case  having   ended   in               acquittal, further prosecution in the  present               case  would amount to abuse of the process  of               the Court,               (ii) even otherwise, the alleged offenses were               committed  somewhere in 1965 and it  would  be               unfair, if not unjust to put the petitioner on               trial after about 10 years, and 463 (iii) the charge was not "likely to stand". It  will  be  recalled that the trial in the  case  had  not started.   There was therefore no justification  for  taking the  view  that  evidence in both  the  cases  was  similar. Moreover, it is not the requirement of law that if one  case has ended in acquittal, prosecution in another case would be illegal.  It cannot also be said that it would be illegal to commence  the trial in a case after a period of 10 years  or so.   So  also,  it cannot be said  that  the  High  Court’s opinion that the charge was not "likely to stand" the trial, was  on a point of law within the meaning of section 215  of the  Code of Criminal Procedure.  The High  Court  therefore lost  sight of its limitation under section 215 of the  Code Of  Criminal  Procedure, and quashed the  ’proceedings"  for reasons  which were extraneous to that section.   Its  order does not conform to the requirement of the law and cannot be sustained. The  High  Court has in fact taken its earlier  judgment  in Sessions Case No. 34 of 1968, which ended in acquittal, into consideration  in  the  present case, and  has  reached  the conclusion that the present appeal is "not likely to stand". Here  again, the High Court lost sight of the provisions  of sections  40  to  44 of the Evidence  Act  which  state  the circumstances  in which previous judgments are  relevant  in civil  and  criminal  cases.  Thus  section  40  states  the circumstances  in which a previous judgment may be  relevant to bar a second suit or trial, and has no application to the present case for the obvious reason that no judgment,  order or  decree  is said to be in existence in  this  case  which could  in  law be said to prevent the  Sessions  Court  from holding  the trial.  Section 41 deals with the relevancy  of certain  judgments  in probate,  matrimonial,  admiralty  or insolvency   jurisdiction  and  is   equally   inapplicable. Section 42 deals with the relevancy and effect of judgments, orders  or decrees other than those mentioned in section  41 in so far as they relate to matters of a public nature,  and is  again  inapplicable  to the present  case.   Then  comes section  43 which clearly states that judgments,  orders  or decrees,  other than those mentioned in sections 40, 41  and 42,  are irrelevant, unless the existence of such  judgment, order  or  decree is a fact in issue, or is  relevant  under some other provisions of the Act.  As it has not been  shown that  the judgment in Sessions Case No. 34 of 1968 could  be said  to  be  relevant under the  other  provisions  of  the Evidence Act, it was clearly "irrelevant" and could not have been  taker.  into consideration by the High Court  for  the purpose of making the impugned order.  The remaining section 44 deals with fraud or collusion in obtaining a judgment, or incompetency of a court which delivered it, and can possibly have  no  application in the present case.   It  would  thus appear that the High Court not only lost sight of the  above facts, but also ignored the provisions of section 215 of the Code  of Criminal Procedure and thus committed an  error  of law in basing the impugned judgment on a judgment which  was

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clearly irrelevant. 464 it   has  been  pointed  out  to  us,  and  has   not   been controverted, that Sessions Case No. 2 of 1970 concerned the trial of the respondent in respect of 19 bales which  formed the  subject matter of separate invoices and of  which  the goods  were inspected on different dates.  It has  also  not been  controverted that one Chakravarty inspected  three  of those bales, and found them to be sub-standard goods,.  They were  not  the subject matter of the  respondent’s  criminal trial  in Sessions Case No. 34 of 1968.  Moreover the  trial court has not recorded any evidence in the case, and it  was premature  for the High Court to reach the  conclusion  that the charge  was  "not  likely  to  stand"   against   the respondent. In these circumstances we have no hesitation in allowing the appeal  and  in setting aside the impugned judgment  of  the High  Court.  We order accordingly, and in doing so we  make it  quite clear that the High Court’s judgment  in  Sessions Case No. 34 of 1968, or any observation therein, should  not be taken into consideration in deciding Sessions Case No.  2 of 1970 which must stand or fall on its own merits. S. R.                                Appeal allowed. 465