Delhi High Court
Kamal Kumar vs Union Of India & Anr on 20 May, 2025
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Pronounced on: 20th May, 2025
+ W.P.(CRL) 68/2017, CRL.M.A. 289/2017
KAMAL KUMAR .....Petitioner
Through: Mr. H.G.R. Khattar, Advocate.
Versus
UNION OF INDIA & ANR .....Respondents
Through: Mr. Satish Aggarwala, Sr. Standing
Counsel with Mr. Gagan Vaswani,
Advocate for R-2/DRI.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
JUDGMENT
NEENA BANSAL KRISHNA, J.
1. Petition under Articles 226/227 of the Constitution of India read with
Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred
to as “Cr.P.C.”) has been filed on behalf of the Petitioner-Kamal Kumar
seeking quashing of Criminal Complaint bearing CC No. 113/1/11, filed for
the offence punishable under Section 177 of the Indian Penal Code, 1860
(hereinafter referred to as “IPC“).
2. Briefly stated, the officers of DRI were investigating a case of
purported misdeclaration and undervaluation of various types of Pesticides.
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The Petitioner was summoned under Section 108 Customs Act, 1962 in
compliance of which he tendered his Statement dated 02.08.2011 and
14.09.2011.
3. According to the Petitioner, he duly cooperated during the
investigations. However, he was shocked to receive a summons in the
Complaint case bearing CC No. 113/1/11 wherein the allegations were made
against him that during the recording of Statement on 14.09.2011 by
Respondent No. 2, he gave vague replies and did not provide details of his
employees or his Bank transactions. It was alleged that the Petitioner
admitted certain facts only when confronted with the documents. It was
further alleged that his aforesaid conduct, constituted offence under Section
177 IPC as he had furnished information which he believed to be false.
4. Petitioner moved an Application under Section 245(2) Cr.P.C.
seeking discharge in the aforesaid Complaint Case. Learned MM vide order
dated 06.06.2016 dismissed his Application by observing that prima facie
offence under Section 177 IPC was disclosed from the averments made in
the Complaint.
5. It is asserted by the Petitioner that the Complaint itself is an abuse of
process of law and therefore,it is liable to be quashed. The grounds
essentially on which the quashing of the Complaint is sought, is that no
offence under Section 177 IPC has been disclosed. Furthermore, it is evident
that proceedings under Customs Act or offences thereof, is not covered
under Section 177 IPC as a separate Complaint bearing CC No. 125/1/14
under Sections 132/135 Customs Act has already been filed against the
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Petitioner, on which cognizance has been taken by the Magistrate.
6. It is submitted that Section 177 IPC affects the persons, who are under
legal obligation to assist public servants by furnishing the information. The
term “legally bound” has not been defined in the Code. The obligation of
answering questions, does not imply a duty of furnishing information; it
does not bring a person under 177 IPC.
7. It is submitted that the Customs Act, 1962 is a self-contained Act,
which contains provisions regarding the seizure, search, arrest, confiscation
of goods in possession, penalties for breach of Procedures; for prosecution
of persons accused of offences. Section 41 IPC defines special laws as
applicable to a particular subject. Section 132 Customs Act deals with false
declaration, false documents, etc.
8. Section 26 General Clauses Act, 1977 states that where an act or
omission constitutes an offence in two or more enactments, then the
offender shall be liable to be prosecuted and punished under either of the
two enactments and shall not be liable to be punished for the same offence
under two Acts.
9. Article 20(2) of the Constitution of India also gives protection to a
person from being prosecuted and punished for the same offence more than
once.
10. Likewise, Section 300 Cr.P.C. prohibits the person being subjected
to double jeopardy.
11. The offence under Section 177 IPC and Section 132 of the Customs
Act both deal with providing false information and, therefore, a separate
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Complaint under Section 177 IPC amounts to subjecting the Petitioner to
prosecution twice for an offence under two different Complaints, which is
not permitted under the law. Hence, the quashing of the present complaint
has been sought.
12. Petitioner has relied upon the judgement of Bombay High Court in
Emperor v. Ganpat Subarao Kashyapi MANU/MH/0003/1934 to show that
when there was no contract between him and the DRI officers, he was not
legally bound to furnish information.
13. He has further placed reliance on the case of Sukamal Kanti Ghosh v.
Soulmari Ashram & Ors. MANU/WB/0050/1970 wherein, the principle of
prohibition of double jeopardy as provided under Article 20(2) of the
Constitution of India was upheld.
14. Further, in the case of Kolla Veera Raghav Rao v. Gorantla
Ventaeshwara Rao MANU/SC/0086/2011, Hon’ble Apex Court it was held
that Section 300 (1) Cr.P.C. is wider than Article 20 (2) of the Constitution.
15. Reliance has also been placed on the case of Doongarshi Das v. The
State, MANU/WB/0046/1965 wherein it was observed that the special
provision under special law cannot be ignored over the general law as
provided under Cr.P.C.
16. In the case of Superintendent ofCustoms and Central Excise v. R.
Surendar MANU/TN/0139/1992, wherein the alleged contraband articles
were seized and the disposal of such properties was made under the
Customs Act 1962, it was held to be permissible only under the machinery
provided therein and not otherwise and the Criminal Court has no
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jurisdiction or power to order interim custody of such articles or return of
the same, except to pass an Order for disposal extreme cases only in
accordance with the Customs Act 1962.
17. Reliance was also placed on the case of Zaverbhai Amaidas v. The
State of Bombay MANU/SC/0040/1954, wherein the rule of construction of
statutes was stated and it was observed that when a latter statute again
prescribes an offence created by a previous one and imposes a different
punishment or varies the procedure as prescribed in the previous Statute, the
earlier Statute is repealed by the later Statute.
18. Submissions heard and record perused.
19. Essentially, the contentions of the Petitioner are that during his
interrogation by the DRIin a Complaint, he had given a statementwhich is
claimed to be false, for which, the present Complaint has been filed under
Section 177 IPC. According to him, a separate Complaint under Section 132
Customs Act, has already been filed for the same offence and the present
Complaint is not maintainable, as it tantamounts to subjecting the Petitioner
to suffer for the same offence twice, which is prohibited under Section 300
Cr.P.C. as well as it amounts to violation of his Constitutional Right
protected under Article 20(2) of the Constitution of India.
20. Pertinently, it is mentioned in the Complaint itself and has also been
admitted by the learned Counsel on behalf of the Petitioner that in his
Discharge Application which was filed under Section 245(2) Cr.P.C., same
grounds had been taken and the said Application was dismissed by the
learned MM vide order dated 06.06.2016. Admittedly, he filed a Revision
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Petition challenging the order of learned MM wherein the same grounds as
agitated in the present Writ Petition in addition to other grounds, were taken
by on behalf of the Petitioner.
21. From the submissions made in the Complaint and the admissions
made during the arguments, it is evident that the grounds on which the
quashing of Complaint has been sought, have already been agitated before
learned MM, who has dismissed the Application for Discharge. The
Petitioner most appropriately, has availed the appropriate remedy of
assailing the order by way of Revision and in these circumstances, the
parallel challenge to Complaint on same grounds cannot be agitated by way
of this Writ Petition.
22. In fact, filing this Writ Petition amounts to bypassing the
determination by learned ASJ and the Petitioner should continue with his
Revision rather than seeking a direct challenge to the order of learned MM,
by way of present proceedings.
23. There is no merit in the present Petition, which is hereby dismissed.
(NEENA BANSAL KRISHNA)
JUDGE
MAY 20, 2025
N
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