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\\ $-22 to 25 HIGH COURT OF DELHI
CRL.REV.P. 175/2011
DIRECTORATE GENERAE OF CENTRAL EXCISE INTELLIGENCE
Petitioner
Through; Mr.Sushil Kaushik,Advocate
CRL.REV.P. 175/2011
DIRECTORATE GENERAE OF CENTRAL EXCISE INTELLIGENCE
Petitioner
Through; Mr.Sushil Kaushik,Advocate
VERSUS
STATE Respondents
Through: Mr.Navin Sharma,APP for the State Mr.M.J.Michael,Proxy Counsel for
Mr.Pradeep Jain, Advocate for R-2
Through: Mr.Navin Sharma,APP for the State Mr.M.J.Michael,Proxy Counsel for
Mr.Pradeep Jain, Advocate for R-2
CRL.REV.P. 176/2011
DIRECTORATE GENERAL OF CENTRAL EXCISE
Through: Mr.Sushil Kaushik,Advocate
DIRECTORATE GENERAL OF CENTRAL EXCISE
Through: Mr.Sushil Kaushik,Advocate
VERSUS
State Mr.Pradeep Jain,Advocate for R-2
CRL.REV.P. 177/2011
DIRECTOR GENERAL OF CENTRAL EXCIXE
DIRECTOR GENERAL OF CENTRAL EXCIXE
VERSUS
2013:DHC:8465 (9 State
CRL.REV.P. 178/2011
DIRECTORATE GENERAL OF CENTRAL EXCISE
DIRECTORATE GENERAL OF CENTRAL EXCISE
VERSUS
STATE Pvcspondents State
CORAM:
HON'BLE MR.JUSTICE KAILASH GAMBHIR
14.05.2013 By this petition filed under Section 397 Cr.P.C., the petitioner seeks to challenge the order dated 18.01.2011 passed by the learned
Metropolitan Magistrate, Saket Court, New Delhi thereby dismissing the Complaint Case bearing No.80/1/2010 filed by the petitioner under
Section 200 Cr.P.C. for taking cognizance against respondent No.2 for committing an offence punishable under Section 174 IPC.
Arguing the present petition, the learned counsel for the petTioner submits that the learned Metropolitan Magistrate, has failed to appreciate the fact that the petitioner has taken every possible step to summon respondent No.2 in the proceedings initiated by the petitioner under Section 14 of the Central Excise Act. Learned counsel for the petitioner further submits that in terms of the Section 14 (2) of the
Central Excise Act 1944, a person who has been summoned by the
Central Excise officer is bound to attend the proceedings, either in person or by an authorised agent. But in the present case, despite various summons sent to respondent No.2, he not only failed to appear himself but he also never cared to depute his authorized representative to represent him in the said proceedings. Learned counsel for the petitioner further submits that the learned Metropolitan Magistrate, has committed another illegality by going into the defence ofrespondent
No.2 at the stage of pre-summoning instead of believing the ease ofthe petitioner on the pre-summoning evidence led by the petitioner to summon the accused in terms of the Section 174 lEC. Learned counsel for the petitioner submits that based on the documentary evidence placed on record by the petitioner, it is quite clear that absence of respondent No.2 in respect of the various summons sent by the petitioner was intentional and therefore, on a primafacie view of the aforesaid case filed by the petitioner and the documents placed on
^ record, the learned Metropolitan Magistrate ought to have summoned respondent No.2. Learned counsel for the petitioner, in support of his contentions placed reliance on a
14.05.2013 By this petition filed under Section 397 Cr.P.C., the petitioner seeks to challenge the order dated 18.01.2011 passed by the learned
Metropolitan Magistrate, Saket Court, New Delhi thereby dismissing the Complaint Case bearing No.80/1/2010 filed by the petitioner under
Section 200 Cr.P.C. for taking cognizance against respondent No.2 for committing an offence punishable under Section 174 IPC.
Arguing the present petition, the learned counsel for the petTioner submits that the learned Metropolitan Magistrate, has failed to appreciate the fact that the petitioner has taken every possible step to summon respondent No.2 in the proceedings initiated by the petitioner under Section 14 of the Central Excise Act. Learned counsel for the petitioner further submits that in terms of the Section 14 (2) of the
Central Excise Act 1944, a person who has been summoned by the
Central Excise officer is bound to attend the proceedings, either in person or by an authorised agent. But in the present case, despite various summons sent to respondent No.2, he not only failed to appear himself but he also never cared to depute his authorized representative to represent him in the said proceedings. Learned counsel for the petitioner further submits that the learned Metropolitan Magistrate, has committed another illegality by going into the defence ofrespondent
No.2 at the stage of pre-summoning instead of believing the ease ofthe petitioner on the pre-summoning evidence led by the petitioner to summon the accused in terms of the Section 174 lEC. Learned counsel for the petitioner submits that based on the documentary evidence placed on record by the petitioner, it is quite clear that absence of respondent No.2 in respect of the various summons sent by the petitioner was intentional and therefore, on a primafacie view of the aforesaid case filed by the petitioner and the documents placed on
^ record, the learned Metropolitan Magistrate ought to have summoned respondent No.2. Learned counsel for the petitioner, in support of his contentions placed reliance on a
ORDER
of this Court in the case of
'D.Dujari v. M.R.Chander,Enforcement Officer',2007XAD(Delhi)591.
On the other hand,the learned counsel appearing for respondent
No.2 submits that the order passed by the learned Metropolitan
Magistrate, is a reasoned order and that the learned Metropolitan
Magistrate, duly took into consideration the documentary evidence placed on record by the petitioner. Learned counsel for respondent No.2 also submits that the learned Metropolitan Magistrate, dismissed the said complaint case filed by the petitioner after taking the primafacie view of the matter based on the material placed on record by the petitioner and therefore, it cannot be said that the order passed by the learned Metropolitan Magistrate, is not a reasoned order. Learned counsel for respondent No.2further submits that after the completion of the investigation, the adjudication of proceedings is in progress and respondent No.2 has been appearing before the adjudicating authority.
I have heard the learned counsel for the parties.
The case of the petitioner is that the petitioner is competent to make inquiries under section 14 of the Central Excise Act and in pursuance to that,summons were issued to the respondent no.2 several times, but the accused failed to join the inquiries despite being served through summons and therefore, he was liable to be proceeded under
Section 174 IPG. The Petitioner filed an application for commission of an offence under Section 174 IPG for summoning, which was dismissed by the learned Metropolitan Magistrate. Assailing the said order passed by the learned Metropolitan Magistrate, petitioner filed the present petition.
Section 174 IPG states:
Section 174. Non-attendance in obedience to an order form pubiic servant
Whoever, being legally bound to attend In person or by an agent at a certain place and time in obedience to a n summons, notice, order or proclamation proceeding from any public servant legally competent, as such public servant, to Issue the same.
Intentionally omits to attend at that place or time, or departs from the place where he Is bound to attend before the time at which It Is lawful for him to depart, shall be punished with simple Imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both, or. If the summons, notice, order or proclamation Is to attend In person or by agent In a Court of Justice, with simple Imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Petitioner has alleged that the accused had intentionally avoided to join the inquiry in response to the summons issued against him, however the perusal ofthe record shows that the accused is a resident of
Kanpur, Uttar Pradesh and considering the huge distance that the pet'tioner would have to travel, it would be inappropriate to expect from him to make immediate arrangements. It is clear from the record placed before this court that the accused has undoubtedly specified the reasons for his absence and apprised the petitioner time and again about the same. Learned Metropolitan Magistrate has very rightly pointed out that every person has his limitations and certain unavoidable circumstances to deal with, due to which one cannot be expected to be present at all times, at the want ofthe other person. Even if the accused was intimated several times to summon before the concerned authority, the intentions of the accused for being absent cannot be doubted as being the resident of Kanpur, it would be imprudent to expect the availability ofthe person at a short notice. One cannot lose sight of the bonafides of the petitioner, as the learned
Metropolitan Magistrate has very clearly stated that it is only after perusal of the documents on record, it has been adjudicated that the
Petitioner by way ofseveral letters has initiated with feasible reasons to the concerned authorities for not being able to present himself.
Definitely, it would be apt to give reasonable time to the accused to adhere to the directions issued against him.
Therefore, in view of the aforesaid discussion and after perusing the documents on record, I am in agreement with the decision given by the learned Metropolitan Magistrate and do not find any illegality or perversity in the said order. It is apparent that the conduct of the accused is not intentional and therefore, it does not fall under the purview of Section 174 IPC. Hence, the present petition deserves to be dismissed.
In view of the aforesaid position, the present petition stands dismissed. It is ordered accordingly.
KAILASH GAMBHIR,J.
MAY 14,2013 V
'D.Dujari v. M.R.Chander,Enforcement Officer',2007XAD(Delhi)591.
On the other hand,the learned counsel appearing for respondent
No.2 submits that the order passed by the learned Metropolitan
Magistrate, is a reasoned order and that the learned Metropolitan
Magistrate, duly took into consideration the documentary evidence placed on record by the petitioner. Learned counsel for respondent No.2 also submits that the learned Metropolitan Magistrate, dismissed the said complaint case filed by the petitioner after taking the primafacie view of the matter based on the material placed on record by the petitioner and therefore, it cannot be said that the order passed by the learned Metropolitan Magistrate, is not a reasoned order. Learned counsel for respondent No.2further submits that after the completion of the investigation, the adjudication of proceedings is in progress and respondent No.2 has been appearing before the adjudicating authority.
I have heard the learned counsel for the parties.
The case of the petitioner is that the petitioner is competent to make inquiries under section 14 of the Central Excise Act and in pursuance to that,summons were issued to the respondent no.2 several times, but the accused failed to join the inquiries despite being served through summons and therefore, he was liable to be proceeded under
Section 174 IPG. The Petitioner filed an application for commission of an offence under Section 174 IPG for summoning, which was dismissed by the learned Metropolitan Magistrate. Assailing the said order passed by the learned Metropolitan Magistrate, petitioner filed the present petition.
Section 174 IPG states:
Section 174. Non-attendance in obedience to an order form pubiic servant
Whoever, being legally bound to attend In person or by an agent at a certain place and time in obedience to a n summons, notice, order or proclamation proceeding from any public servant legally competent, as such public servant, to Issue the same.
Intentionally omits to attend at that place or time, or departs from the place where he Is bound to attend before the time at which It Is lawful for him to depart, shall be punished with simple Imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both, or. If the summons, notice, order or proclamation Is to attend In person or by agent In a Court of Justice, with simple Imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Petitioner has alleged that the accused had intentionally avoided to join the inquiry in response to the summons issued against him, however the perusal ofthe record shows that the accused is a resident of
Kanpur, Uttar Pradesh and considering the huge distance that the pet'tioner would have to travel, it would be inappropriate to expect from him to make immediate arrangements. It is clear from the record placed before this court that the accused has undoubtedly specified the reasons for his absence and apprised the petitioner time and again about the same. Learned Metropolitan Magistrate has very rightly pointed out that every person has his limitations and certain unavoidable circumstances to deal with, due to which one cannot be expected to be present at all times, at the want ofthe other person. Even if the accused was intimated several times to summon before the concerned authority, the intentions of the accused for being absent cannot be doubted as being the resident of Kanpur, it would be imprudent to expect the availability ofthe person at a short notice. One cannot lose sight of the bonafides of the petitioner, as the learned
Metropolitan Magistrate has very clearly stated that it is only after perusal of the documents on record, it has been adjudicated that the
Petitioner by way ofseveral letters has initiated with feasible reasons to the concerned authorities for not being able to present himself.
Definitely, it would be apt to give reasonable time to the accused to adhere to the directions issued against him.
Therefore, in view of the aforesaid discussion and after perusing the documents on record, I am in agreement with the decision given by the learned Metropolitan Magistrate and do not find any illegality or perversity in the said order. It is apparent that the conduct of the accused is not intentional and therefore, it does not fall under the purview of Section 174 IPC. Hence, the present petition deserves to be dismissed.
In view of the aforesaid position, the present petition stands dismissed. It is ordered accordingly.
KAILASH GAMBHIR,J.
MAY 14,2013 V