S. N. BANERJEE versus BABU LAL GUPTA (DHANUKA) & ORS.

Citation: [1979] 3 S.C.R. 679 · Decided: 12-04-1979 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

• 
679 
S. N. BANERJEE 
v. 
BABU LAL GUPTA (DHANUKA) & ORS. 
April 12, 1979 
[S. MURTAZA FAZAL ALI AND A. D. KoSHAL, JJ.J 
Section 181.A Sea Customs Act and s. 196A Code of Criminal Procedure, 
1898-Scope of. 
Section 187A of the Sea Customs Act provides that no court shall take cog-
nizaace of any offence relating to smuggling of goods punishable under Item 
A 
B 
81 of the Schedule to s. 167 except upon a complaint in writing made by the 
C 
C.'hief 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, _prOTidcs that no court shall take cognizance of the offence of criminal 
conspiracy punishable under s. 120B of the IPC unless a Chief Presidency 
Magistrate hu, by order in writing consented to the initiation of the pro-
ceeding. 
D 
The appellant, ~'ho was Assistant Collector of Customs, sought the con-
sent of the Chief Presidency Magistrate under s, 196A of the Code of 
Criminal Procedure for the prosecution of the respondents under s. 120B 
IPC a.! ttey were guilty of a conspiracy to Commit offences under Item 81 
of the Schedule to s. 167 of the Cutorns Act and s. 5 of Import and Exports 
(Control) Act. 
This was accorded. 
The appellant was authorised by the 
E 
Chief Customs Officer to prosecute the respondents. A complaint was accord. 
ingly filed against them. 
Jn 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 tiit the date of their 
pro~ecution the appellant \Vas not an officer holding the authorisation envi-
F 
sagcd 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 
holdina such authorisation. 
The High Court upheld the respondent's contention. 
It was contended on behalf of the appeliant that the Higb_ Court erred 
in interpreting s. 196A so as to incorporate therein the provisions regarding 
authorisation enacted by s. 187 A of the Act. 
Allowing the appeal. 
HELD: The authorisation contempJated by s. 187A of the Act, which 
could be given only in respect of complaints embracing offences under Item 81 
G 
of the •chedule to s. 167 of the Act. was actually obtained by the appellant 
H 
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-BJ 
A 
B 
c 
680 
SUPREME COURT REPORTS 
(1979] 3 s.c.R. 
Section 196-A of the Code does not envisage any application whatso-
ever and, therefore, no application at all is necessary for action under that 
section. 
Assuming that such an application was necessary it \Yould 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 ot 
proceedings being exercised on an application made by any person, whether 
or not he is connected with the official n1achinery normally burdened with 
the duty of initiation o.f prosecutions. 
The status of the person •0/ho supplies 
facts is not relevant. [683 D-EJ 
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. 
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 Cr!. Revision No. 739/68. 
D 
K. K. Venugopal, Addi. So!i. Genl., S. Markandey and S. P. Nayar 
E 
F 
G 
H 
for the Appellant. 
N. C. Talukdar and Sukumar Ghosh for Respondent 3. 
The Judgment of the Court was de!iveJ'ed 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 res-
pect of an offe
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