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PETITIONER: RATILAL BHANJI MITHANI

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA AND OTHERS

DATE OF JUDGMENT11/04/1972

BENCH: RAY, A.N. BENCH: RAY, A.N. SIKRI, S.M. (CJ) SHELAT, J.M. DUA, I.D. KHANNA, HANS RAJ

CITATION:  1972 AIR 1567            1973 SCR  (1) 118  1972 SCC  (3) 793

ACT: Code of Criminal Procedure (Act 5 of 1898) ss. 504 and 508A- Scope of. Practice  and Procedure-Appeal disposed of-Power of  Supreme Court to extend time for return of Commission.

HEADNOTE: The  appellant, along with others, was charged with  offence under s.  120B,  I.P.C.  read  with s. 167(81)  of  the  Sea Customs Act, 1878, and s.     5  of the Imports and  Exports Control  Act,  1947,  and the  prosecution  had  to  examine certain  witnesses in West Germany on Commission.  The  High Court  ordered the issue of the Commission.   The  appellant appealed to this Court against the order and the appeal  was confined  to the payment of expenses to his  Counsel.   This Court allowed the appeal and ordered payment of the expenses by  the  prosecution.   This Court allowed  the  appeal  and ordered  payment of the expenses by the prosecution.   While the  appeal was pending and thereafter, this Court  extended the time for return of the Commission. On a further application by the prosecution for extension of time, HELD  :  (1) the provisions contained in ss. 504  and  508A, Cr.P.C.  contain  complimentary  provisions  for  reciprocal arrangements  between the Government of our Country and  the Government  of a foreign Country for Commission from  Courts in  India  to specified courts in the  foreign  Country  for examination of witnesses residing in the foreign Country and similarly  for  Commissions from specified  courts  in.  the foreign Country for examination of witnesses residing in our Country.  In the present case, no notification under s. 508A has been published specifying the Courts in West Germany  by whom  commissions for examination of witnesses  residing  in India  may  be issued.  The notification under  s.  504  was issued  in  anticipation  of  an  arrangement  between   the Governments  of  India and West Germany, and was  not  based upon  any existing reciprocal complete  arrangement  between the  Government of India and the Government of West  Germany for examination of witnesses residing in West Germany.  When

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this Court finds that there are no arrangements in existence within  the meaning of ss. 504 and 508A, Cr.P.C. this  Court will not make any order. [124A-G, F-H] (2)                 Even after the disposal of the  appeal, this  Court  may,  if it were so inclined  pass  orders  for extension of time as it would only be supplemental to and in continuation  of  the time originally fixed by  this  Court. [125A-B]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Crl.  Misc.  Petition  No. 1260 of 1971. (Application  by respondents Nos. 1 and 2 for  extension  of time upto 31st March, 1972 for the return of the  Commission for examination of some witnesses in West Germany). I.   N. Shroff, for the appellant. 119 Jagdish  Swarup, Solicitor-General of India, R.   H.  Dhebar and S.   P. Nayar, for respondents Nos. 1 and R. P. Kapur, for respondents Nos. 3 and 4. The Judgment of the Court was delivered by Ray, J. There are two matters before this Court.  One is  an application  of the State of Maharashtra and  the  Assistant Collector  of Customs, Bombay in Criminal Appeal No. 117  of 1970  for  extension  of time upto 31 March,  1972  for  the return  of the Commission for examination of some  witnesses in West Germany in Criminal Case No. 42/ CW of 1962  pending in the Court of the Presidency Magistrate, Esplanade Courts, Bombay.  The other is a writ petition of Mithani challenging the alleged arrangement mentioned in communication. dated 13 July,  1971 from the Indian High Commissioner in  London  to the  External  Affairs Ministry,, Government  of  India  for examination  of witnesses in West Germany as  infraction  of the  provisions  of  section 504 of  the  Code  of  Criminal Procedure  and as violative of the petitioner’s  fundamental rights under Article 14 of the Constitution. One  Ram  Lal  Laxmi Dutta Nanda and  7  others  including,. Mithani  were  alleged  to  have  committed  offences  under section 120-B of the Indian Penal Code read with section 167 (81)  of  the  Sea Customs Act, 1878 and section  5  of  the Imports and Exports Control Act, 1947 some time between  the years  1959 to 1960.  The gist of the offences committed  is import  of goods of a contraband nature of the value of  Rs. 15 lakhs and above. Mithani was arrested on 11 May, 1960 and was on bail.   Ram, Lal Laxmi Dutta Nanda died on 15 September, 1967. The prosecution filed complaint against Mithani and 6 others on  1 April, 1961.  The hearing of the case  started  before the  Chief  Presidency Magistrate, Bombay  on  12  February, 1962.   Several witnesses were examined.  1 On 21  December, 1962 charges were framed.  The charges inter alia were  that goods were imported without licence.  The goods were alleged to be of a contraband nature. The prosecution case in short was this. 24 consignments were brought  into India.  The last 4 consignments  were  seized. Mithani  is not charged in respect of those 4  consignments. In  regard  to the 8 of the remaining  20  consignments  the prosecution alleged that 10 Verladescheins which are said to be  Loading Sheets and which came to the possession  of  the prosecution  gave the description of contraband goods.   The Bills  of Lading in respect of those 8 consignments  however showed the goods as covered by the licences.

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120 Between  March  1962  and  December  1962  the   prosecution examined  about  200 witnesses before  the  Magistrate.   On 24  .July,  1962  the  Magistrate  held  the  Verladescheins inadmissible  in evidence under the Indian Evidence Act  and Commercial  Documents Evidence Act, 1939.  By another  order dated  6 December, 1962 the Magistrate however held  that  9 out  of 10 verladescheins were admissible, in evidence.   On 21  December,  1962  on the .basis  of  admissibility  of  9 verladescheins  in evidence the Magistrate  framed  charges. The  charges  framed were fewer than those  claimed  by  the prosecution. The  prosecution in the month of February, 1963 went up  ,on revision  before the Bombay High Court against admission  of only  9  and  not all 10  Verladescheins  and  also  against framing   of  fewer  charges  than  that  claimed   by   the prosecution.   On  20  August, 1964 the  Bombay  High  Court upheld   the  earlier  order  of  the  Magistrate  that   10 verladescheins  sheets  were inadmissible.  The  High  Court remanded  the case to the Magistrate for  reconsidering  the charges. The  prosecution filed petition for special leave to  appeal to  this Court against the order of the Bombay  High  Court. The petition for special leave was dismissed. The prosecution thereafter obtained an order from the Magis- trate to take photostat copies of certain documents.  One of the  accused  challenged that order of the Magistrate  in  a revision  .application  before the Bombay High  Court.   The Bombay  High Court on 4 October, 1966 gave  the  prosecution time  up  to  4  January,  1967  for  calling  the   foreign witnesses.   The  prosecution  failed to do  so  within  the appointed time. The  prosecution  in  the month of January,  1967  filed  an application before the Bombay High Court for cancellation of the  bail  of  Mithani on the ground that  he  had  extended threat to the German witnesses.  The Bombay High Court on  6 March,  1967 cancelled the bail of Mithani and directed  him to  surrender  to judicial custody on or  before  13  March, 1967. Mithani  surrendered  to  jail custody on  13  March,  1967, Mithani  filed  a  petition for  ’special  leave  to  appeal against  the order of the Bombay High Court dated  6  March, 1967  cancelling the bail.  Mithani obtained special  leave. The appeal was dismissed on 4 May, 1967.  This Court however gave time to the prosecution till 26 June 1967 for examining the German witnesses. The  prosecution  took no steps to examine the  German  wit- nesses.  The prosecution applied in the month of July,  1967 to  the Magistrate for the issue of a Commission to  examine German  witnesses  at  Hamburg or  Berlin  or  London.   The Magistrate 121 rejected the application.  The prosecution filed a  revision application  before the Bombay High Court against the  order dated 8 August, 1967 passed by the Magistrate rejecting  the prosecution  application  for examination  of  witnesses  on Commission.    The   High  Court  dismissed   the   revision application. The prosecution came up to this Court for appeal by  special leave  against  the order of the Bombay High Court  dated  9 August,   1968.   The  prosecution  withdrew   the   special leave,petition. By  an  order dated 26 February, 1969  the  Magistrate  dis- charged Mithani and two other accused.  The Magistrate  how- ever directed that the remaining 4 accused No. 1, 4 5 and  6

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be tried according to law. In the month of June, 1969 the prosecution filed a  revision application  in the Bombay High Court challenging the  order dated   26  February,  1969  whereby  the   Magistrate   had discharged   Mithain  and  the  other  two   accused.    The prosecution  also filed  in  the  Bombay  High  Court   an application for the issue of Commission to West Germany  for examination  of  German  witnesses.   In  support  of   that application the prosecution relied upon a notification dated 9  September,  1969 issued by the Central  Government  under section 504(3) of the Code of Criminal Procedure. Mithani has challenged the validity of that notification  in the writ petition. The  Bombay  High Court on 17 December , 1969  allowed   the application of the prosecution and ordered the issue of  the Commission  to  the  Federal Republic  of  Germany  for  the examination of German witnesses. Mithani on 25 August, 1970 obtained special leave to  appeal against  the  judgment and order of the  Bombay  High  Court dated  17 December, 1969.  The special leave was limited  to the  question  of non-allowance of air fare  and  the  daily expenses of Mithani’s lawyer.  Mithani’s appeal is  Criminal Appeal No. 117 of 1970 It may be stated here that the Bomaby High Court granted the prosecution time first up to 31  May, 1970  and  then up to 1 August, 1970 for the return  of  the Commission.  The third extension of time by the Bombay  High Court was up to 16 September, 1970. This  Court  on 4 February, 1971 allowed  Mithani’s  appeal. being Criminal Appeal No. 117 of 1970.  This Court  directed the  prosecution to pay to Mithani the tourist air fare  for one  lawyer and a sum of Rs. 100/- per day for the  expenses of  the  lawyer of Mithani engaged  in  examining  witnesses in    West Germany. 2089 Sup CI/72 122 Meanwhile  on 14 September, 1970 and again on  10  December, 1970  the  prosecution obtained from  this  Court  extension praying  for extension of time first upto 31 December,  1970 and  ,then  upto  31  March  1971  for  the  return  of  the Commission.   On 18 March, 1971 the prosecution applied  for another  extension of time for the return of the  Commission from 31 March, 1971 to 31 August, 1971.  This Court  however was  pleased  to grant extension of time UP  to  31  October 1971. On  14  October,  1971 the  prosecution  filed  the  present petition praying for extension of time from 31 October, 1971 to 31 March, 1972 for the return of the Commission.  Mithani opposed any extension. On  27 October, 1971 this Court directed the  Government  to file   a  better  affidavit  in  the  criminal   application indicating the steps taken for the return of the Commission. The Government filed an affidavit affirmed by P. K. Kapur on 9 November, 1971. The affidavit filed by the Government revealed two important facts.  First, from the year 1969 when the Government  made’ application   for  examination  of  witnesses   abroad   the Government  always suggested that there was in existence  an arrangement   between  the  Government  of  India  and   the Government  of  the  Federal Republic of  West  Germany  for examination  of witnesses residing in (the Federal  Republic of  West Germany in relation to matters in courts in  India. The Government in that behalf relied on a notification dated 9 September, 1969 issued by the Central Government.  In that notification  it is recited "whereas arrangements have  been made  by the Central Government with the Government  of  the

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Federal Republic of West Germany for taking the evidence  of the  witnesses  in the Federal Republic of West  Germany  in relation to criminal matters in courts in India, the Central Government in pursuance of sub-section (3) of section 504 of the   Code  of  Criminal  Procedure  hereby   directs   that commissions  from  courts in India for  the  examination  of witnesses in the Federal Republic of West Germany shall  be issued in the form annexed thereto, to the courts" mentioned in  the  notification.   The  second  matter  of  importance brought out by the affidavit is that in fact no  arrangement between  the Government of India and the Government  of  the Federal  Republic  of West Germany for  the  examination  of witnesses residing in West Germany was finalised. The  other features in the Government affidavit  are  these. The memorandum dated 6 September, 1969 written by the  Under Secretary  to the Government of India, Ministry of  External Affairs to the Director of Revenue Intelligence showed  that unless  letters  were exchanged between  the  Government  of India  and the West German Republic establishing  reciprocal arrangements 123 for   the  examination  of  witnesses  in   criminal   cases notifications under sections 504(3) and 508A of the Code  of Criminal Procedure could not be issued.  The notification on 9 September’ 1969 was issued it seems in anticipation of  an arrangement  between  the Government of India and  the  West German Republic.   It  is  established  on  the  affidavit evidence  that  no arrangement has yet  been  entered  into. Negotiations have been going on for such arrangement.  On-17 December, 1970 there is a note of the Government of India on the specific subject of the present case and it is  recorded there  that a formal agreement for entering into  reciprocal arrangements  with  West  Germany  for  the  examination  of witnesses in criminal cases has not yet been entered into In the  month of April, 1971 the Ministry of  External  Affairs wrote to the Indian Embassy in West Germany that ’the letter of  request  may  therefore be kept with you  for  the  time being, and may be forwarded to the West German authorities, as  soon  as  reciprocal arrangements  are  made  with  that country’.   In the month of May, 1971 the Embassy  wrote  to the  Ministry here ’It is requested that the Commission  may be  forwarded to the West German authorities for  execution, as  soon as. the arrangement is signed, requesting  them  to summon the witnesses for interrogation as per the names and addresses  supplied  by that Government’.  In the  month  of August,  1971 the Ministry of External Affairs  was  writing that  the  papers  had been sent to  the  Ministry  of  Home Affairs  for  ,their concurrence and issue  of  notification under section 508A of the Code of Criminal Procedure, The  several annexures to the affidavit filed on  behalf  of the State indicate’ that reciprocal arrangements between the Government  of  India-  and the  Federal  Republic  of  West Germany for examination of witnesses in the Federal Republic of  West  Germany and in India are not  yet  complete.   The verbale  note  dated  6 March, 1972 issued  by  the  Foreign Office  of  the  German Republic is a  memorandum  of  talks exchanged  between ’the West German Republic and the  Indian Embassy.  The note suggests that sometime towards the end of May  or  early  in  June, 1972 the,,  date  for  hearing  of witnesses has been fixed.  It is said that the date is not a definite one.  It has to be found out whether the  witnesses would  be available at the proposed dates  for  examination. Documents  necessary for examination of witnesses are to  be translated.   The  verbale  note  gives  certain  ideas  and information of the- proposed examination of witnesses.   The

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court  passes  an  order for  examination  of  witnesses  in Commission  when the court is satisfied not only  about  the necessity  of  such evidence but also  about  the  effective enforceability  of Commission for examination of  witnesses. In  the  present case, there is  no  reciprocal  arrangement between  the Government of India and the Government  of  the Federal   Republic  of  West  Germany  for  examination   of witnesses in West Germany and in India. 124 The provision contained in sections 504 and 508 of the  Code of  Criminal Procedure contain complementary provisions  for reciprocal  arrangements  between  ’the  Government  of  our country  and  the  Government  of  a  foreign  country   for Commission  from Courts in India to specified courts in  the foreign country for examination of witnesses in the  foreign country  and similarly for Commission from specified  courts in the foreign country for examination of witnesses residing in  our country.’ Notifications No. SRO 2161, SRO 2162,  SRO 2163, and SRO 2164 all dated 16 November, 1953  published-in the Gazette of India Part 11 Section 3 on 28 November,  1953 illustrate   the   reciprocal   arrangements   between   the Government of India and the Government of the United Kingdom and the Government of Canada for examination of witnesses in the United Kingdom, Canada and the examination of  witnesses residing in India. In  the present case, no notification under section 508A  of the Code of Criminal Procedure has been published specifying the  courts in the Federal Republic of West Germany by  whom commissions for examination of witnesses residing. in  India may be issued.  The notification dated 9 September, 1969  in the  present case under section 504 of the Code of  Criminal Procedure   is   not  based  upon  any   existing   complete arrangement   between  the  Government  of  India  and   the Government  of  the  Federal Republic of  West  Germany  for examination  of  witnesses residing, in West  Germany.   The notification dated 9 September, ’1969 is ineffective for two reasons.  First, there is no reciprocal arrangement  between the  Government of India and the Government of  the  Federal Republic  of  West Germany as contemplated in  sections  and 508A  of  the  Code  of  Criminal  Procedure  Secondly,  the notification under section 504 is nullified and repelled  by the  affidavit evidence adduced on behalf of the State  that no agreement between the two countries has yet been made. In  the present case, extension of time was granted  in  the past  ’to enable the State for examination of  witnesses  in West ,Germany and return of the commission to this  country. The  State  could not obtain the return of  the  commission. Now,  a question has arisen as to whether any  extension  of time  Should  be  made  when  it  appears  that   reciprocal arrangements  within  the contemplation of section  504  and 508A  of the Code of Criminal Procedure are not  made.   The courts  do not make orders in vain.  When this  Court  finds that  there  are  no arrangements in  existence  within  the meaning  of  sections 504 and 508A of the Code  of  Criminal Procedure this Court is not inclined to make any order. The  Solicitor General on behalf of the, State made a  faint suggestion  that  after the appeal has been disposed  of  by this 125 Court no further order could be made.  It is the State which has  asked  for extension of time.  The  contention  of  the State  that  this Court is powerless to make  any  order  is unsound.   When the appeal was disposed of this  Court  gave directions for the return of the commission.  That direction was  given because the time originally fixed by  the  Bombay

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High  Court had expired.  Any further extension of  time  is supplemental  to and in continuation of ’the time  fixed  by this  Court.  If this Court were inclined to pass any  order for extension there would be no impediment to passing of  an order in that behalf. In view of the fact that this Court is not willing to  grant any  further  extension of the time for the  return  of  the commission,  it  is  not necessary to  deal  with  the  writ petition filed by Mithani.      The application of the State is dismissed. V.P.S. 126