LexRATILAL BHANJI MITHANI versus THE STATE OF MAHARASHTRA & ORS.
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993
RATILAL BHANJI MITHANI
v.
TIIB STATE OF MAHARASHTRA & ORS.
September 28, 1978
[R. S. SARKARIA, 0. CHINNAPPA REDDY AND A. P. SEN, JJ.]
B
Code of Crinlinal Procedure 1898, (5 of 1898)-Charge framed-Whether
Magistrate has power to cancel the charge and discharge the accured .
'Di.rcharge' find 'Acquittal'-Distinct concepts applicable to different stages
of proceedings.
The· appellant and six others were charged with the offence of entering into
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criminal conspiracy, with intent to defraud the Government of the duty payable
on various contraband goods, etc. and thereby committing offences under s. 120-
B I.P.C. read with s. 167(81) of the Sea Customs Act 1878 and s. 5 of the
Import and Exports Act 1947.
The prosecution alleged that as a result of the criminal conspiracy t\·venty-
four consignments of goods ca.me from abroad and were received in Bombay
and it is the case of the prosecution that it has in its possession 10 verladescheins
(called as 'mate sheets' or recei{lts) which give the description of the contra-
band goods.
OLJt of these 10 verladescheins, 2 relate to consignments of two
firms for which the appellant held powers-of-Attorney,
The trial Magistrate held that 10 out of the 20 Verladescheins were in-
admissible either under the Evidence Act or under the Commercial Documents
Evidence Act 1939 and that 9 out of the 10 Ver:Jedescheins
were admissible
under s. I 0 of the Evidence Act. He also excluded some other letters and cor-
respondence on the ground that they could not be said to have been written in
furtherance of the conspiracy.
On the basis of the evidence recorded, the Magistrate framed charges against
the appellant and the co-accused.
The prosecution as well as the appellant filed revision applk:ations in the
High Court.
A single Judge of the High Court held that the Magistrate wUl
have to consider afresh whether the documents, which he had admitted under
s. 32 or s. 10 of the Evidence Act were admissible or not and also consider
whether it was necessary to frame additional charges.
After this order, the Additional Chief Prcside.ncy Magistrate discharged the
accused on the grounds that since no overt act was proved against the appellant
and certain other accused no conspiracy can be inferred as against them .
A Division Bench of the High Court allowed the revision petition filed by the
prosecution and held that the Magistrate had no legal power to discharge the
accused after framing the charge.
In the appeal to this Court it was contended on behalf of the appellant that
in passing the impugned order, the Magistrate was simply acting in consonance
with the observations and implied directions contained in the order of the High
Court.
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994
SUPREME COURT REPORTS
[1979] 1 s.c.R.
Dismissing the appeal,
HEW·: 1. From the scheme of the provisi~1s contained in ss. 252 tu 257
given in Chapter XXI of the Code of Criminal Procedure 1898, it is clear that
in a warrant case instituted otherwise on a police report, 'discharge' or 'acquittal'
of accused are distinct concepts applicable to different stages of the proceedings
in Court.
The legal effect and incidents of 'discharge' and 'acquitta:.t' are c~Jso
different.
An order of di&ebargc in a warraut case instituted on complaint, l'an
be made only after the process has been issued and before the charge is framed.
A discharge without considering the evidence taken is illegal. If a prin1a f(;Cie
case is made out the Magistrate must proceed un<ler s. 254 and frame charge
against the accused.
The trial in a warrant case starts with the framing of
charge; prior to it the proceedings are only an inquiry. After the framing of
charges, if the aocused pleads guilty, the Magistrate is required to proceed \vith
the· tria1 in the manner provided in ss. 254 to 258 to a logical end.
Once a
charge is framed, the Magistrate has no power to cancel the charge and reverse
the proceedings to the stage of s. 353 and discharge the accused. flo04 F·-G,
1004 H, 1005 A·Bl
2. After a charge i, framed, the Magistrate has no power under the Code
to discharge the accused. He can either acquit or convict the accused unless
he decides to proceed oo.der ss. 349 and 562 of the Code of 1898 (which cor-
responds to sections 325 and 360 of the C'ode of 1973). Excepting where the
prosecution must fail for want of a fundamental defect, such as want of sanction,
an order of acquittal musExcerpt shown. Read the full judgment & AI analysis in Lexace.