Criminal Application No. 2602 of 1993. Case: C. P. Nangia, Assistant Collector of Customs, Bombay Vs Omprakash Aggarwal. Bombay High Court

Case Number:Criminal Application No. 2602 of 1993
Party Name:C. P. Nangia, Assistant Collector of Customs, Bombay Vs Omprakash Aggarwal
Counsel:For Petitioner: M.K. Patwardhan, Advs. and For Respondents: V.P. Vashi with V.V. Vashi; Smt. K.D. Randive, A.P.P., Advs.
Judges:P. S. Patankar, J.
Issue:Criminal Procedure Code (2 of 1974) - Sections 167(2), 2(g), 309(1)
Citation:1994 CriLJ 2160
Judgement Date:September 22, 1993
Court:Bombay High Court
 
FREE EXCERPT

Judgment:

  1. Rule. The learned Advocates for the Respondents waive notice. By consent heard forthwith.

  2. The Respondent No. 1 who is a Managing Director is alleged to have been involved in offences punishable under Section 135(1)(a)(i) of the Customs Act, 1962 and Section 5 of the Imports and Exports (Control) Act, 1967 for not exporting the goods worth about Rs. 17 lakhs even though he was under an obligation to export the same as equivalent raw material was imported without payment of import duty. Statement of Respondent No. 1 was also recorded under Section 108 of the Customs Act.

  3. Respondent No. 1 came to be arrested on 27-8-1993 and produced on the same date before the Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Bombay and remanded till 28-8-1993. On 28-8-1993, the learned Magistrate considering all the facts and circumstances and by reasoned order remanded Respondent No. 1 to judicial custody till 3-9-1993. The bail plea made by Respondent No. 1 was rejected. This was done so as to give some time to the investigating agency to complete investigation and Respondent No. 1 should not create hurdles by remaining free.

  4. On 30th August, 1993, an application was filed by Respondent No. 1 for releasing him on bail. The same was taken up by the Chief Metropolitan Magistrate, Bombay for hearing on 1-9-1993 and the Respondent No. 1 came to be released on bail. It was observed as follows:-

    "I have given serious consideration to the facts of the case and submission made by both sides. It is almost an admitted position that the investigation in this case is going on since the first week of August, 1993 and the statement of the accused are recorded. It appears that accused had attended the office several times and the correspondence is exchanged between the parties. In view of this I am of the opinion that the accused can be released on imposing certain conditions on him."

  5. As far as the merit of the matter is concerned, I am declining to interfere with the impugned order. Considering the allegations made against Respondent No. 1 the fact that his statement is already recorded under Section 108, panchanama is effected and books of accounts are seized, much of the investigation is over and the Respondent No. 1 has admittedly complied with the conditions of bail, it is not necessary to set aside the impugned order.

  6. The learned Advocate appearing for the petitioner, Shri M.K. Patwardhan, then raised two points. The learned Advocate first submitted that the Metropolitan Magistrate, 32nd Court, Esplanade, Bombay, has passed a well-reasoned order on 28-8-1993 while remanding the Respondent No. 1 to judicial custody till 3-9-1993 and rejecting his bail plea. In the face of such an order, the learned Metropolitan Magistrate ought not to have passed the impugned order. He submitted that the Court of Metropolitan Magistrate is not subordinate Court and, therefore, the Chief Metropolitan Magistrate ought not to have interfered with the order passed by the Metropolitan Magistrate. He poined out that this point was raised before the Chief Metropolitan Magistrate. However, he has not dealt with the same and simply brushed it aside.

  7. Secondly, he submitted that a prayer was made to the Chief Metropolitan Magistrate that effect to the impugned order dated 30-8-1993 be given from 3-9-1993. The learned Judge has committed an error in rejecting the same on the ground that there is no provision to that effect in the Criminal Procedure Code.

    FIRST SUBMISSION:

  8. In my opinion, it was highly irregular on the part of the Chief Metropolitan Magistrate to take up the matter in the face of the earlier order passed by the Metropolitan Magistrate, 32nd Court, Esplanade, Bombay who is not subordinate to the Chief Metropolitan Magistrate so far as the judicial work is concerned. It is of co-ordinate jurisdiction. The propriety required that the application filed by Respondent No. 1...

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