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PETITIONER: S. N. BANERJEE

       Vs.

RESPONDENT: BABU LAL GUPTA (DHANUKA) & ORS.

DATE OF JUDGMENT12/04/1979

BENCH: KOSHAL, A.D. BENCH: KOSHAL, A.D. FAZALALI, SYED MURTAZA

CITATION:  1979 AIR 1526            1979 SCR  (3) 679  1979 SCC  (2) 390

ACT:      Section 187A  Sea Customs  Act  and  s.  196A  Code  of Criminal Procedure, 1898-Scope of.

HEADNOTE:      Section 187A  of the  Sea Customs  Act provides that no court shall  take cognizance  of  any  offence  relating  to smuggling of  goods punishable under Item 81 of the Schedule to s.  167 except  upon a  complaint in  writing made by the Chief Customs  Officer or  any other  officer of Customs not lower  in  rank  than  an  Assistant  Collector  of  Customs authorised by the Chief Customs Officer. Section 196A of the Code of  Criminal  Procedure,  1898,  so  far  as  relevant, provides that  no court shall take cognizance of the offence of criminal  conspiracy punishable  under s. 120B of the IPC unless a  Chief  Presidency  Magistrate  has,  by  order  in writing consented to the initiation of the proceeding.      The appellant,  who was Assistant Collector of Customs, sought the  consent of the Chief Presidency Magistrate under s.  196A   of  the   Code  of  Criminal  Procedure  for  the prosecution of  the respondents  under s.  120B IPC  as they were guilty of a conspiracy to commit offences under Item 81 of the  Schedule to  s. 167  of the  Customs Act and s. 5 of Import and  Exports (Control)  Act. This  was accorded.  The appellant was  authorised by  the Chief  Customs Officer  to prosecute the respondents. A complaint was accordingly filed against them.      In  the   course  of   proceedings  before   the  Chief Presidency Magistrate, one of the respondents moved the High Court alleging  that the  Chief Presidency Magistrate had no power to  give his  consent because  till the  date of their prosecution the  appellant was  not an  officer holding  the authorisation envisaged  in s. 187-A of the Act and that the Magistrate could not act under s. 196A of the Code unless an application was  made  to  him  by  a  person  holding  such authorisation.      The High Court upheld the respondent’s contention.      It was  contended on  behalf of  the appellant that the High  Court   erred  in   interpreting  s.  196A  so  as  to incorporate therein  the provisions  regarding authorisation enacted by s. 187A of the Act.      Allowing the appeal,

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^      HELD : The authorisation contemplated by s. 187A of the Act, which  could be  given only  in respect  of  complaints embracing offences  under Item  81 of the schedule to s. 167 of the  Act, was actually obtained by the appellant from the competent authority  before the  complaint  was  filed.  The complaint cannot  be said  to be hit by the provisions of s. 187A of the Act. [683 A-B] 680      Section  196-A  of  the  Code  does  not  envisage  any application whatsoever and, therefore, no application at all is necessary  for action  under that  section. Assuming that such an  application was  necessary it would not follow that the same  had to  be made  by a  person holding  the type of authorisation envisaged  by s.  187-A of  the Act.  Under s. 196-A, there is no bar at all against the power of the Chief Presidency  Magistrate  to  consent  to  the  initiation  of proceedings being  exercised on  an application  made by any person, whether  or not  he is  connected with  the official machinery normally  burdened with  the duty of initiation of prosecutions. The status of the person who supplies facts is not relevant. [683 D-E]      In the  instant  case  the  requirements  of  both  the sections viz.,  s. 196A  of the Code and s. 187-A of the Act were  fulfilled   before  the   complaint  was   filed  and, therefore, there is no infirmity in the impugned proceeding.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 233 of 1972.      Appeal by  Special Leave  from the  Judgment and  Order dated 6-5-1970  of the  Calcutta High Court in Crl. Revision No. 739/68.      K. K. Venugopal, Addl. Soli. Genl., S. Markandey and S. P. Nayar for the Appellant.      N. C. Talukdar and Sukumar Ghosh for Respondent 3.      The Judgment of the Court was delivered by      KOSHAL,  J.-This  appeal  by  special  leave  which  is directed against  a judgment  dated May  6, 1970 of the High Court of Calcutta has arisen in the following circumstances. On March  2, 1963,  Shri S. N. Banerjee, Assistant Collector of Customs,  Calcutta, made  an  application  to  the  Chief Presidency Magistrate,  Calcutta, praying  that  consent  be given under  section 196A of the Code of Criminal Procedure, 1898 (hereinafter  called the Code) to the prosecution of 14 persons in  respect of  an offence under section 120B of the Indian Penal  Code as  they were  guilty of  a conspiracy to commit offences under item 81 of the Schedule to section 167 of the  Sea Customs Act (hereinafter referred to as the Act) and section  5 of the Imports and Exports (Control) Act (the Control Act,  for short).  The application  was  granted  on March 5,  1963 when the Chief Presidency Magistrate accorded the consent  asked for.  Four days  later, i.e., on March 9, 1963. Shri  Banerjee was  authorised by  the  Chief  Customs Officer, Calcutta,  to prosecute  the said  persons for  the commission of  offences under  item 81  and section  5 above mentioned. On  the same  date, i.e.,  March  9,  1963,  Shri Banerjee actually  filed a  complaint against  the  said  14 persons accusing  them of  the commission  of offences under section 120B of the Indian Penal Code and item 81 as well as section 5 aforesaid. 681      After the  Presidency Magistrate, who was seized of the

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case,  had   examined  43  witnesses,  one  of  the  accused challenged  his  jurisdiction  to  entertain  the  complaint through a petition made to the High Court under sections 439 and 561A of the Code on the ground that the Chief Presidency Magistrate had  no power to give the consent which he did on March 5,  1963, because,  till that  date, Shri Banerjee was not  an  officer  holding  the  authorisation  envisaged  in section 187A  of the Act. The petition stated that the Chief Presidency Magistrate  could not act under the provisions of section 196A  of the  Code unless an application was made to him  in   that  behalf   by  a   person  holding   such   an authorisation.      The  High   Court  accepted   the  contention   of  the petitioner before it with the following observations:           ".....  The  requirement  of  authorisation  under      section 187A Sea Customs Act ................ to enable      a Court  to take  cognizance attaches to sanction under      section 196A  Cr. P.C.,  as the allegations made or the      charge framed is in respect of one offence and sanction      granted by  the  Chief  Presidency  Magistrate  at  the      instance of  S. N.  Banerjee, who was not authorised to      initiate proceeding  is therefore  bad in  law, as  the      officer had no authority to apply for sanction."           "......Obviously, for  an offence  of  the  nature      charged, there can be only one cognizance and therefore      the sanction  under section  120B must also be obtained      by an  officer mentioned  in section  187A Sea  Customs      Act, ....."      An argument put forward on behalf of Shri Banerjee that section 196A  of the Code did not speak of any authorisation was repelled by the High Court in the following terms:           "Mr.  Mitra  has  also  submitted  that  not  only      section 196A  does not  speak of any authority but that      even after  sanction, prosecution may not be initiated.      This, in  our view is oversimplification of the matter.      Prosecution has been initiated and therefore this Court      has to  decide whether  the  magistrate  is  authorised      under the  law to  take  cognizance,  without  sanction      under section  196A being  obtained by person competent      to initiate proceeding."      2. On  behalf of  Shri Banerjee,  who is  the appellant before us,  it has  been urged that the High Court has erred in  interpreting   section  196A   of  the  Code  so  as  to incorporate therein  the provision  regarding  authorisation enacted by section 187A of the Act, and, after hearing 682 learned counsel  for  the  parties,  we  find  ourselves  in complete agreement  with him for the reasons which follow.      3. The  two sections requiring interpretation by us are reproduced below:                   Section 196A of the Code           "No Court  shall take cognizance of the offence of      criminal conspiracy  punishable under  section 120B  of      the Indian Penal Code,           (1) in  a case  where the object of the conspiracy      is to  commit either  an  illegal  act  other  than  an      offence, or a legal act by illegal means, or an offence      to which  the provisions  of section  196 apply, unless      upon complaint  made by  order or  under authority from      the State  Government or  some officer empowered by the      State Government in this behalf, or           (2) in  a case  where the object of the conspiracy      is  to   commit  any   non-cognizable  offence,   or  a      cognizable   offence   not   punishable   with   death,      imprisonment for  life or  rigorous imprisonment  for a

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    term  of   two  years  or  upwards,  unless  the  State      Government or a Chief Presidency Magistrate or District      Magistrate  empowered  in  this  behalf  by  the  State      Government has,  by order  in writing, consented to the      initiation of the proceedings:           Provided that where the criminal conspiracy is one      to which  the provisions  of sub-section (4) of section      195 apply no such consent shall be necessary."                   Section 187A of the Act           "Cognizance of  offences :  No  Court  shall  take      cognizance of  any offence  relating  to  smuggling  of      goods punishable  under item  81  of  the  Schedule  to      section 167,  except upon complaint in writing, made by      the Chief  Customs Officer  or  any  other  officer  of      Customs not  lower in  rank than an Assistant Collector      of Customs  authorised in  this  behalf  by  the  Chief      Customs Officer." There is  a corresponding  section in the Control Act which, according to  the High  Court, provides  for a  similar  bar against the taking of cognizance of complaints by Courts but to which  we shall  no longer  advert as  arguments were not addressed to  us in  relation thereto by learned counsel for either party. 683      4.  Now,  section  187A  above  extracted  contemplates authorisation by  the Chief  Customs Officer only in respect of complaints embracing offences under item 81 aforesaid. As stated above, such an authorisation was actually obtained by Shri Banerjee  in his  favour from  the competent authority, viz., the  Chief Customs  Officer, before  the complaint was filed, so that the complaint cannot be said to be hit by the provisions of  section 187A  of the Act. The argument raised on behalf  of the  accused respondents  and accepted  by the High Court, however, was that, as the conspiracy forming the subject-matter of  the offence  under section  120B  of  the Indian Penal  Code was a conspiracy to commit offences under the  Act,   an  application   by  a   person   holding   the authorisation above  mentioned was  a sine  qua non  for the accord of  consent under  sub-section (2) of section 196A of the Code.  This argument,  in our opinion, has no substance. For one  thing, section  196A of  the Code does not envisage any application whatsoever and, therefore, no application at all is  necessary for  action under that section. Even if it be held  that such an application was inherent in the scheme of the  section, it would not follow that the same had to be made by a person holding the type of authorisation envisaged by section  187A of the Act. As the language of section 196A of the Code stands, there is no bar at all against the power of  the  Chief  Presidency  Magistrate  to  consent  to  the initiation of  proceedings being exercised on an application made by any person whosoever, whether or not he is connected with the  official machinery normally burdened with the duty of initiating  prosecutions. It  is no  doubt true  that the consent to be given has to follow a consideration of all the material facts  of the  case, but  then the  status  of  the person who  supplies such  facts is  not  relevant.  If  the legislature had  intended to  restrict the accord of consent under  section   196A  of   the  Code   to  cases  in  which applications had  been  made  by  persons  authorised  in  a particular manner,  the exercise  of the  power would surely have been  made subject  to such  a  condition  in  specific terms. Holding that no application was at all needed for the accord of  consent provided for in the section, and that, in any case,  such an  application need not have been made by a person authorised in the manner spoken of by section 187A of

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the Act,  we repel  the argument  raised to  the contrary on behalf of  the accused-respondents.  It follows  that in the instant case  the requirements of both the sections, namely, section 196A  of the  Code and  section 187A of the Act were fulfilled before  the complaint  was filed so that, as found by the  High Court,  there is  no infirmity  in the impugned proceedings.      5. Learned  counsel for  the  accused-respondents  also contended that  the consent  given by  the Chief  Presidency Magistrate was not valid 684 in law as it had been accorded without proper application of the mind  to the material facts of the case. This contention we do  not allow  to be  raised as  it was  not put  forward before the High Court and embraces questions of fact.      6. For  the reasons  stated, the appeal succeeds and is accepted. The  impugned order  is set  aside and  the  trial court is directed to proceed with the case from the stage at which it was interrupted by reason of the impugned judgment. P.B.R.                                       Appeal allowed. 685