- (1.) This is an application under Section 482, Criminal Procedure Code praying for quashing the proceeding being Case No. C. 2773/83 pending in the Court of 9th Metropolitan Magistrate, Calcutta under Section 429, 468/471 of the IPC, Section 135 of the Customs Act and Section 5 of the Import & Export (Control) Act, 1947 in which the charge has been framed by the learned Magistrate and is pending for disposal before the learned Trial Judge.
(2.) The petitioner has urged two points in quashing the proceeding. The first point is that on a complaint filed by the Prosecution Agency on 30.11.83 against the present petitioner, the petitioner appeared before the learned Magistrate on 27.1.84. Evidence before charge have not been completed within four years from that date and charge had only been framed on 12.12.89. But according to Sub-section (3) of Section 245 of the Criminal Procedure Code inserted in the Act by Criminal Procedure Code (West Bengal Amendment) Act, 1988 if all the evidence referred to in Section 244 of the Act are not produced in support of the prosecution within four years from the date of appearance of the accused, the Magistrate has to discharge the accused unless the prosecution satisfies the Magistrate that upon evidence already produced and for special reasons there is ground for presuming that it shall not be in the interest of justice to discharge the accused. It is contended that this provision came into force on 14.3.89 as on that date the assent of the President has been published for general information in the Calcutta Gazette Extraordinary, the Magistrate immediately on the above Sub-section (3) of Section 245 of the Criminal Procedure Code coming into force should have discharged the present petitioner under Sub-section (3) of Section 245 unless the prosecution satisfies the Magistrate that upon evidence already produced and for special reasons there is ground for presuming that it shall not be in the interest of justice to discharge the accused. It is contended that as the learned Magistrate before framing of the charge on 12.12.83 ignored the above provision, he committed a great illegality and the petitioner would be liable to be discharged from this case under Sub-section (3) of Section 245 of the Criminal Procedure Code.
(3.) Secondly, the sanction purported to be given by the Collector of Customs under Section 137(1) of the Customs Act was not in accordance with the law because on the face of the said sanction order it was in substance a sanction for prosecution but not a sanction to take cognizance. It is contended that Supreme Court in Ram Kumar v. State of Haryana has clearly observed that a sanction to prosecute as contemplated in Section 132 of the Criminal Procedure Code is not a substitute for sanction for taking cognizance under Section 197 of the Criminal Procedure Code and in view of the above Supreme Court decision the sanction is invalid and the taking of cognizance on the basis of the said sanction is also invalid.;