RATILAL BHANJI MITHANI versus THE STATE OF MAHARASHTRA AND OTHERS

Citation: [1973] 1 S.C.R. 118 · Decided: 11-04-1972 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Dismissed

Judgment (excerpt)

118 
RA TILAL BHANJI MITHANI 
v. 
THE STATE OF MAHARASHTRA AND OTHERS 
April 11, 1972 
[S. M. SrKRI, C.J., J. M. SHELAT, A. N. RAY, I. D. DUA AND 
A 
H. R. KHANNA, JJ.] 
B 
Code of Criminal Procedure (Act S of 189S) ss. S04 and SOSA-
Scope of. 
Practice and Procedure-Appeal 
disposed of-Power of Supreme 
Court to extend time for return of Commission. 
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 a 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 a 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 
No. 1260 of 1971. 
c 
D 
E 
F 
G 
(Application by respondents Nos. 1 and 2 for extension of time 
upto 31st March, 1972 for the return of the Commission for exami-
H 
nation of some witnesses in West Genn~ny). 
l. N. Shroff, for the appellant. 
A 
B 
c 
D 
E 
F 
G 
R. B. MITHANI V. STATE (Ray, J.) 
11~ 
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 a 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 a con-
traband nature of the value of Rs. 15 lakhs and above. 
Mithani was arrested. on 11 Ma,y, 1960 and was on bai

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