RATILAL BHANJI MITHANI versus THE STATE OF MAHARASHTRA AND OTHERS

RA TILAL BHANJI MITHANI

THE STATE OF MAHARASHTRA AND OTHERS April 11, 1972

[S. M. SrKRI, C.J., J. M. SHELAT, A. N. RAY, I. D. DUA AND H. R. KHANNA, JJ.]

Code of Criminal Procedure (Act S of 189S) ss. S04 and SOSA-Scope of.

Practice and Procedure-Appeal disposed Court to extend time for return of Commission.

disposed of-Power of Supreme

The appellant, along with others, was charged with offence under s. 1208, l.P.C. read withs. 167(SI) of the Sea Customs Act, IS7S, and ~. S of the Imports and Exports Control Act, 1947, and the prosecution had to exan1ine- certaiP witnesses in West Germany on Commission. The High Court order<od tho i.ssue of the Commission. The appellant appealed to this Court agrunst the order and the appeal was qonfined to the payment of expenses to his Counsel. This Court allowed the appeal and ordered payment of the expenses by the p'rosecution. This Court allowe<.I the appeal and ordered payment of the expenses by the prosecution. WhiJe the appeal was pending and thereafter, this Court extended the time for return of the Commission.

On further application by the prosecution for extension of time, HELD : (I) the provisions contained in ss. S04 and SOSA, Cr.P.C. contain complimentary provisions for reciplrocal arrangements between the Government of our Country and the Government of foreign Coun-try 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 Coun-try f·or examination of witnesses residing in our Country. In the present case, no notification under s. SOSA has been published specifying the Courts in \Vest Germany by whom commissions for examination of wit-nesses 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 baBed upon any existing re-ciprocal complete arrangement between the Government of India and the Government of West· Germany for examination of witnesses residing in West Germany. When this Court finds that there are no arrangements in existence within the meaning of "· S04 and SOSA, 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 welre 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. [12SA-BJ CRIMINAL APPELLATE JURISDICTION : Cr!. Mi~c. Petition

CRIMINAL APPELLATE JURISDICTION : 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 exami-nation of some witnesses in West Genn~ny).

l. N. Shroff, for the appellant.

Jagdish Swarup, Solicitor-General of lndia,R. H. Dhebar and S. P. Nayar, for respondents Nos. 1 and 2.

R. P. Kapur, for respondents Nos. 3 and 4.

The Judgment of the ·court was deliveyed by

Ray, J. There are two matters before this Court. One is an application of the Stltte of Maharashtra and the Assistant Col-lector 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 c;rirnirial Case No. 42/CW of 1%2 pending in the Court of the Presidency Magistrate, Esplanade Courts, Bombay. The other is writ petition of Mithani ~hallenging the alleged arrangement mentioned in communication dated 13 July, 1971 from the Indian High Conunissioner in London to the External Affab Ministry, Government of India for examination of witnesoos in West Germany as infraction of the provisions of section 504 of the Code of Criminal Procedure and as violative of the pei:itioner'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 con-traband nature of the value of Rs. 15 lakhs and above.

Mithani was arrested. on 11 Ma,y, 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 Magjstrate, Bombay on 12 February, 1962. Several witne<se's were examined. On 21 December, 1962 charges were framed. The charges inter alia were that goods were import-ed without licence. The goods were alleged to be of 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 remainin_g 20 consignments the prosecution alleged that 10 Verlade_scheins which are said to be Loading Sheets and .which came to the possession of the prosecution gave the descrip-tion of contraband goods. The Bills of ~ading in respect of those 8 consignments however showed tlie gOodS as covered by the licences. '

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 Docu-.ments Evidence Act, 1939. By another order dated 6 December, 1962 the Magistrate however held that 9 out of I 0 verladescheins were admissible in evidence. On 21 Decernber, 1962 on the basis of admissibility of 9 ver!adescheins in evidence the Magis-trate framed charges. The charges framed were fewer than those claimed by the prosecut!ion.

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 llhe earlier order of the Magistrate that 10 verladescheins sheets were inadmissible. The High Court remanded the case to the Magistrrte for recon-sidering the charges.

The prosecution filed petit,ion 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 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 appli-

cation before the Bombay High Court for cancellation of the bail of Mithani on the ground that he had exllended threat to the German wit11esses. The Bombay High Court on 6 March, 1967 cancelled the bail of Mithani and directed him to surrender to judicial custody on or ~efore 13 March, 1967.

Mithani surrendered to jail custody on 13 March, 1967, Mithani filed petition ·for special leave to appeal against the order of the Bombay High Coprt dated 6 March, 1967 cancelling the bail. Mithani obtained special leave. The appeal was dis-missed on 4 May, 1967. This Comt however gave time to the prosecution till 26 June 1967 for examining the German wit-nesses.

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 Commission to examine German witnesses nt Hamburg or Berlin or London. The Magistrate

R. B. MITHANI V. STAT.:'. (Ray, J.)

rejected the application. The prosecucion filed revision appli-cation before tlie Bombay High Court against the Qrder dated 8 August, 1967 passed by the Magistrate rejecting the prosecu-tion application for examination of witnesses on Commission. The l!igh Court dismissed the revision application.

;B 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 be tried according to law.

In the month of June, 1969 the prosecution filed revision application in the Bombay High Court challenging the order dated 26 February, 1969 whereby the Magistrate had discharged Mithani and the other two accused. The prosecution also filed in the Bombay High Court an application for the issue of Com· n mission· to West Germany for examination of German witnesses. Jn support of that application the prosecution relied upon noti-fication dated 9 September, 1969 issued by the Central Govern-ment under section 504(3) of the Code of Criminal Procedure. Mithani has challenged tl1e validity of that notification in the writ petition.

The I1ombay High_ Court on 17 December, 1969 allowed the

application of the prosecution and ordered the issue of the Com-mission to the Fedi;ral 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 Deoember, 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 a.nd then up to 31 'G August, 1970 for the return of the Commission. The third exten· sion of time by the Bombay High Court was up to 16 Septen1ber 1970. '

. This .ci:urt on 4 February, 1971 allowed Mithani's appeal bemg Cnmmal Appeal No. 117 of 1970. This Court directed the prosecution to pay to Mithani the tourist air fare for one lawyer and u sum of Rs. 100/ • per day for the expenses of the lawyer of Mithani engaged in exarqining witnesses in West Germany. 9-!218S tPCl/72

,"\-feanwhile on 14 September, 1970 and again on 10 Decem-ber, 1970 tjle prosecution obtained from this Court extensioh praying for extension of time first upto 31 December, 1970 and 1then 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 gram exten-sion of time up to 31 Oetober 1971.

On 14 October, 1971 the prosecution filed the present petition praying for extension of time from 31 October, 1971to31 March. 1972 for the return of the Commission. Mithani opposed any extension.

On 27 October, 1971 this Court directed the Government to file better affidavit in the criminal application indicating the step, 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 fuels. First, from the year 1969 when the Government made application for exami_nation 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 ithe Federal Republic of West Germany in relation to matters in courts in India. The Government in that behalf relied on notification dated 9 September, ~ 969 issued by the Central Government. In that notification it is recited "whereas arrange-ments have been_ made by the Central Government with the Government" of the Federal Republic of West Ger~any for taking the evidence of the witnesses in the FederaJ Republic of West Germany in relation to criminal matters in couct.s in India, the Central Government in pursuance of sub-section (3) of section 504 of the Code of Criminal Procedure hereby directs that com-missions from courts in India for the examination of witnesses in the Federal Republic of West Germany shall be issqed 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 finalis- . ed.

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 un-less letters were exchanged betwecn the Government of India and the WeS'I: German Republic establishing reciprocal arrangements

for the examination of witnesses in criroipal cases notifications under sections 504(3) and SOSA of the Code of Criminal Pro-cedure could not be issued. The notification on 9 Septembct, 1969 was issued it seems in anticipation of an arrangement bet-ween the Government of India and the West German Republic. It is established on the affidavit evidence that no arrangement hhs yet been entered into. Negotiations have been going on for such arrangement On 17 December, 1970 there is note of the Government of India on the specific subject of the present case and it is recorded there that formal agreement for entering into reciprocal arrangements with West Germany for the examination of witnesses in crin:tinal 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 reciproc<tl. arrangements ar>~ made with that country'. In the month of May, 1971 the Embassy wrote to the Minis<try here 'It is reque~ted that the Commission may be forwarded to the West German authori-D ties for execution, as soon as the arrangement is signed, request-ing 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 :ii notification under sec-tion SOSA of the Code of Criminal Procedure. The several annexures to the affidavit filed on behalf of the State indi_ca'te that reciprocal arrangements between the Govern-ment of India and the Federal Republic of West Germany for · examination of witnesses in the Federal Republic of West Ger-many and in India are not }'et complete. The verbale note dated 6 March, 1972 issued by the Foreign Office of the German Republic is memorandum of talks exchanged between 'the West German Republic and the Indian Embassy. The note suggests that sometime towardg 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 ':>e found out whether the witnesses would be available a!t the proposcil dates for examina-tion. Documents necessary for examination of witnesses are to be translated. The verbale note gives certain ideas and informa-tion of the proposed examination of witnesses. The 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 reci-ptocal arrangement .between the Government of India and the Government of the Federal Republic of West Germany for el"ami-nation of witnesses in West Germany and in India.

The provisions contained in sections 504 and 508A of the Code of Criminal Procedure contain complementary provisions for reciprocal arrangements between the Government of our country and !lie Government of foreign country for Commission from Courts in India to sp·~cified courts in the foreign country for examina•tion of witnesses fu the foreign country and similarly for Commission from specified courts in the foreign country for examination of witnesses residing in our conntry. Notificatiom No. SRO 2161, SRO 2162, SRO 2163 and SRO 2164 all dated 16 Novemb~r, 1953 published in the Gazette of' India Part II Section 3 on 28 November, 1953 illustrate the reciproc1l arrangements between the Government of India and the Govern-ment of the Uni•ted Kingdom and the Government of Canada for examination of witnesses in the United Kingdom, Canada and th·~ ,examination of witnesses residing in India.

In the present case, no notification under section 508A of th.e Code of Criminal Procedure has been published specifying the courts in the Federal Republic of Wes•t Germany by whom com-missioas for examination of witnesses residing in India m2y be issued. The notification dated 9 September, 1969 in the present case under section 504 of 'the Cod•3 of Criminal Procedure is not based upon any existing complete arrangement between the Gov-ernment of India and the Government of the Federal Republic of West Germany for examination of witnesses residing in West Germany. The not''ication dated 9 Sep1'3mber, 1969 is ineffec-·tive for two reasons. First, there is no reciprocal arrangement betwe~n the Government of India and the Government of th.e Federal fo,;;cublic of West Germany as contemplat>3d in sections 504 and 508A of the Code of Criminal Procedur~. Secondly,' the notification under section 504 is nullified and repelled by the affidavit evidence adduced on behalf of the State that no agree-ment between the two countries has yet been made.

Jn the present case, ext>~nsion of time was granted in the past 'to enable the Sta•te for examination of witnesses in West Germany and return of the commission to t!:is. ~ountry. The State could not obtain ·the return of the c01~11mss10n; Now, question has arisen as to wh~ther ~y extension of !lme sh?u!d be made when it appears th•t reciprocal arrangements with1~ the cont·~mplation of section 504 and 508A of the Code of Cn-minal Procedure are not made. The courts do not make orders in vain. When this Court finds that ~here are no arrangements in existence within the meaning .of sectlo1'.s 504 ~nd. SOSA of 'the Code of Criminal Procedure this Court 1s not mclmed to make any order.

The Solicitor General on behalf of the State made frunt :suggestion tha•t after the appeal has been disposed of by this

R. B. MITHANI V. STATE (Ray, J.)

Court no further order could be made. It is th~ State which has asked for extension of time. The contention of the State that this Cour1 is powerless 'to make any order is unsound. When the appeal was disposed of this Court gave directions for the return of tk commission. That direction was given because the time originally fixed by the Bombay High Court had expired. Any further extension of time is supplemental 'to and in con1inuation 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 faC't that this Court is not willing to grant any further extension of 1he itime for the return .of the commission, it is not necessary to deal with the writ petition filed by Mrthani.

The application of the. State is dismissed.