Decided on October 31,2002

UNION OF INDIA Respondents


- (1.)A written complaint was lodged for offences arising under section 135 of the customs Act, 1962 alleging that the accused was in possession of four gold biscuits with foreign markings valued at Rs. 22,994/ -. The search and seizure had taken place as early as on 30th/31st August, 1974 whereas the complaint was a written complaint was lodged in the year 1979 and that complaint was a written complaint, however, not signed by a public servant. On receipt of the summons the accused raised an objection that the summons could not have been issued in this case inasmuch as the complaint did not contain the signatures of the public servant who had lodged the complaint.
(2.)Before issue of the summons to the appellant the complainant in question had not been examined and first proviso of section 200 of the code of Criminal procedure, 1973 makes it clear that when the complaint is made in writing the magistrate need not examine the complainant and the witnesses if a public servant acting or purporting to act in the discharge of his official duties has made the complaint. It is not clear in this case, as stated earlier, as to which of the public servant had lodged the complaint. In the circumstances, learned Magistrate was justified in having recalled the earlier order made by him and dismissing the complaint.
(3.)However, the High Court interfered with the order made by the learned Magistrate on a criminal appeal being filed before it and treating that non signing of the complaint was a mere irregularity which is curable as it has not caused any prejudice to the parties and directed the remand of the matter to the trial court and also directed the complainant in the case to sign the complaint. The said order had been made by the High Court in the year 1988. The accused No. 2 in the case had died on 23rd February, 1982 whereas the incident had taken place in the year 1974 and proceedings were sought to be remitted by the order of the High Court in the year 1988. We do not think the ends of justice have been met particularly when the high Court had not adverted to the relevant principles of the Code of Criminal procedure in regard to the lodging of complaints and merely treated the matter as one of the mere irregularity. In the circumstances of the case, we think the view taken by the High Court cannot be sustained. Therefore, we set aside the order passed by the High Court and restore that of the learned Magistrate. The appeal is allowed accordingly.

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