The petitioner is the 8th accused in C.C. 985 of 1986 on the file of the Additional Chief Metropolitan Magistrate (E.O.I.), Madras. This is a petition under Section 482 Cr. P.C. praying for a direction to the Special Public Prosecutor, not to conduct the prosecution in C.C. 985 of 1986, before the Additional Chief Metropolitan Magistrate (E.O.I.), Egmore, Madras.


2.According to the petition the Collector of Customs, Madras, has filed a private complaint under Section 6 of the Imports and Exports (Control) Act, 1947 in C.C. 985 of 1986 before the Additional Chief Metropolitan Magistrate (E.O.I.), Egmore, Madras against the petitioner, and 9 others alleging that they had committed the offences under Section 122B read with Section 420 read with S. 511 I.P.C. Sections 468, 471 read with S. 468, I.P.C. and Section 5(a) of the Imports and Exports (Control) Act, 1947 and Section 135(1)(a)(ii) of the Customs Act, 1962. The petitioner filed a petition before the said Court praying that the prosecution in a private complaint should not be conducted by the Public Prosecutor since the final report of the C.B.I, investigation with regard to the same case had not been submitted to the court. That petition was returned to the petitioner stating that separate petition should be filed for each remedy. After returning the petition the court directed the prosecution to examine the witnesses and 22 witnesses had been examined and the cross-examination of all those witnesses on behalf of the petitioner has been deferred.


3.The Inspector of Police, C.B.I, registered the case with regard to the same offence for which a private complaint has been laid and investigation was completed. However, no final report under Section 173 Cr. P.C. has been submitted by the Inspector of Police, C.B.I., Madras. Under Section 210 Cr. P.C. if during the trial of a private complaint, it is revealed that the Police investigation with regard to the same offence is in progress, the Court conducting the private complaint should stay all further proceedings and call for the final report from the Police Officer and then try the cases although it is a case instituted on a Police report. So the learned Magistrate has failed to comply with the procedure given in Section 230 Cr. P.C.


4.The Special Public Prosecutor is conducting the prosecution on behalf of the complainant. The Special Public Prosecutor, C.B.I, is not competent to conduct the prosecution in a private complaint initiated by the Collector of Customs, Madras. The respondent-complainant cannot authorise the Special Public Prosecutor, C.B.I, to conduct the prosecution in a private complaint case as there is no valid authorisation to conduct the case as per Sec. 34 Cr. P.C. Even if there is authorisation, such authorisation is illegal since the Special Public Prosecutor, C.B.I., is not a pleader to appear for any other department other than the Central Government. There is no authorisation for the Special Public Prosecutor, C.B.I. to conduct the prosecution for offences under the Imports and Exports (Control) Act, 1947 and Customs Act, 1962. The Special Public Prosecutor cannot file the vakalatnama or memo of appearance on behalf of the complainant since it is not his duty to appear for any Department without authorisation.


5.The petitioner is seriously prejudiced by the prosecution of the private complaint case by the Public Prosecutor since the procedure in regard to summoning of witnesses by the Public Prosecutor is different from that of the procedure followed in a private complaint case. It is against the principles of natural justice, if a Public Prosecutor is permitted to appear and conduct a private complaint case and it will also cause substantial prejudice to the petitioner. The witnesses and documents were procured in the case with the authority of Police and if the witnesses were tried to their previous statement recorded during investigation the same will cause prejudice to the petitioner. Under such circumstances, the Special Public Prosecutor will be directed not to conduct the prosecution in the case.


6.In this case, the petitioner is the 8th accused in C.C. No. 985 of 1986 on the file of the Additional Chief Metropolitan Magistrate which relates to the private complaint filed by the Collector of Customs, Madras, alleging that the accused concerned had committed the offence under Sec. 120B read with Sec. 420, read with Section 511, I. P. C. Sections 468, 471, read with Section 4681.P.C. and Section 5(a) of the Imports and Exports (Control) Act, 1947 and Section 135 (1)(a)(ii) of the Customs Act, 1962. The complaint had been filed under Section 6 of the Imports and Exports (Control) Act, 1947. The petitioner is contending that inasmuch as it is a private complaint the prosecution should not be conducted by the Public Prosecutor of C.B.I. since the Special Public Prosecutor, C.B.I. is not competent to conduct the prosecution, and the Collector of Customs cannot authorise the Special Public Prosecutor C.B.I, to conduct the prosecution and even if there had been any authorisation to the Special Public Prosecutor such authorisation is illegal and the Special Public Prosecutor C.B.I is not a pleader to appear for any other department other than the Central Government. It is also further contended on behalf of the petitioner that in this case, there had been investigation by the Special Police establishment, but the investigation did not result in filing a report under Sec. 173(2) Cr. P.C. and inasmuch as the case has been instituted on a private complaint the procedure will be different and the procedure contemplated in private complaint cases has to be followed. But the witnesses and the documents procured in the case during investigation will be used by the prosecution and the witnesses are likely to be tied to the previous statement recorded during investigation and in such circumstances, the accused will be prejudiced and hence the Special Public Prosecutor has to be directed not to conduct the prosecution in this case. Learned counsel for the petitioner submitted the decision reported inAsst. Collector of Central Excise (Preventive) Madrasv.Krishnamurthi1983 L.W. Crl. 196 and the said decision has been rendered by a Division Bench of our High Court and it has been rendered in connection with some appeals filed by the Assistant Collector of Central Excise, Madras, under Section 377(2) Cr. P.C. through his counsel on the ground of inadequacy of sentence awarded. The Division Bench consisting of Natarajan J. as he then was and Ratnavel Pandian J. held ultimately that the Assistant Collector of Central Excise is not competent under Sec. 377(2) Cr. P.C. to file the appeals through his counsel on the ground of inadequacy of sentence. The learned Judge dealt with S. 135 of the Customs Act, Ss. 8(1) and 65 of the Gold (Control) Act, 1968, Rule 126B of the Defence of India (Gold Control) Rules, 1962, and also the meaning of 'investigation' under Section 2(b) of the Criminal Procedure Code. The learned Judges have pointed out that a plain reading of Section 377 of Cr. P.C. shows that while Section 377(1) empowers the State Government, save as otherwise provided in sub-sec. (2), to direct the Public Prosecutor to present an appeal for enhancement of sentence only in certain categories of cases, viz. (1) when the offence has been investigated by the Delhi Special Police Establishment, or (2) when the offence has been investigated by any other agency empowered to make investigation under any Central Law other than the Criminal Procedure Code. Thus, a reading of sub-sec. (2) clearly shows that so far as the Central Government is concerned. Its power is restricted only to the above said two categories of cases. The learned Judges dealing with the meaning of the term Investigation and also considering the judgment rendered by the Supreme Court inH.E. Rishbudv.State of Delhi 1955 AIR(SC) 196, 1955 (61) CRLJ 526, 1955 SCJ 283, 1955 (1) SCR 1150, 1992 KAR 2543 andState of Madhya Pradeshv.Marbakall, 1959 AIR(SC) 707, 1959 (65) CRLJ 920, 1960 (1) LLJ 36, 1959 (S2) SCR 201 examined the provisions under the Customs Act, 1962 1962 AIR(SC) 276, 1962 (68) CRLJ 217, 1962 (3) SCR 338 in which majority of the learned Judges held that the Customs Officer either under the Land Customs Act, 1924 or under the Sea Customs Act, 1878 is not a police officer for the purpose of Section 25 of the Evidence Act, and also another decision of the Supreme Court inBadak Jyoti Svantv.State of Mysore1966 CAR 245, 1966 (3) SCR 698, 1966 AIR(SC) 1746, 1966 (72) CRLJ 1353, 1978 (2) ELT 1323, 1984 ECR 618

= 1979 E.L.T. (J 323), and on a similar point with regard to an officer of the Railway Protection Force inUtter Pradeshv.Durga Prasad 1974 (80) CrLJ 2465, 1974 CrLR(SC) 553, 1975 (3) SCC 220, 1974 SCC(Cr) 525, 1975 (1) SCR 881, 1974 SCC(Cri) 828, 1974 AIR(SC) 2136 and inBal Kishanv.State of Maharashtra, 1980 Crl.L.J. 1424 1988 LW. Cr. 28 and a decision of our High Court reported in Mani in re. 1966 L.W. Cr. 195 F.B. and other decisions rendered by the Maharashtra High Court and the decision of the Supreme Court inHimathv.State of Maharashtra 1977 CAR 188, 1977 (83) CrLJ 964, 1977 CrLR(SC) 352, 1977 (3) SCC 25, 1977 SCC(Cr) 410, 1977 (3) SCR 513, 1977 MLJ 421, 1977 MLJ(Cri) 421, 1977 (2) SCJ 117, 1977 AIR(SC) 1177, and pointed out that the several provisions contained in the Customs Act, 1962 1977 CAR 188, 1977 (83) CrLJ 964, 1977 CrLR(SC) 352, 1977 (3) SCC 25, 1977 SCC(Cr) 410, 1977 (3) SCR 513, 1977 MLJ 421, 1977 MLJ(Cri) 421, 1977 (2) SCJ 117, 1977 AIR(SC) 1177 and State of Mah

arashtrav.Mahipati,1977 (83) CRLJ 968, 1977 AIR(SC) 1200, and have also extracted what the Supreme Court observed, which is as follows - "In our view, therefore, the scheme of the Act is to enforce the provisions of the Customs Act and to prevent the evasion of Customs duty. The machinery created under this Act is not one for the purpose of investigation into crimes. It is only the side effect resulting from the enforcement of the Customs Act that certain offences are detected. Certain imports and exports without licence are also detected. Since they also constitute offences on the basis of the material collected, a prosecution can be launched as provided in Chapter XIV. The machinery is, however, not created for the purpose of investigation of crime under any Central Act. It cannot be said that is a separate machinery for the purpose of investigation of crimes by-passing the provisions of the Criminal Procedure Code." * 7.From the above decision it is clear that there is no provision for investigation under the Customs Act, 1962.