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1999 DIGILAW 658 (MAD)

H. T. L. Limited v. Union of India

1999-07-17

N.DHINAKAR

body1999
Judgment :- The Order of the Court is as follows :- Petitioners are accused in CC No. 84 of 1995 on the file of the Additional Chief Metropolitan Magistrate (Economic Offence) at Egmore, Chennai. They seek to quash the proceedings in the above calendar case. 2. The proceedings against the petitioners came to be initiated by way of a private complaint at the instance of the respondent in this petition for an offence punishable under Section 9 of the Central Excise Act on the allegation that the petitioners have wilfully evaded payment of differential Central Excise duty for the period from 14-10-1991 to 6-2-1992 on the products manufactured by them. It is the admitted case of both parties that the Tribunal which went into the question by order, dated 17-5-1996 held that part of the matter can be adjudicated de novo and that the petitioners did not wilfully evade the payment of Central Excise duty on the question of wage arrears. It further held that there was no wilful default on the part of the petitioners and there was no intention on their part to evade such payment of Central Excise duty on the goods. The de novo order dated 19-6-1997 also confirmed the orders of the Tribunal holding that there was no wilful intention on the part of the petitioners in evading the payment of tax, though it confirmed the payment of tax. The reference application filed by the department was also dismissed on 11-8-1997. The above facts would indicate that any continuation of the prosecution as on date will be misplaced and that it will amount to abuse of process of court. 3. It is reported by learned Counsel for the respondent that on 30-3-1998 a petition was also filed under Section 321 of the Code of Criminal Procedure before the learned Magistrate, seeking withdrawal of the prosecution, but the learned Magistrate by misinterpreting Section 321 of the Code of Criminal Procedure dismissed the said petition. 4. According to the learned Counsel for the respondent, the learned Magistrate was not justified in dismissing the petition filed by him seeking withdrawal of the prosecution under Section 321 Cr.P.C. holding that he had no permission from the Central Government. I see some force in the contention of the learned Counsel for the respondent. 4. According to the learned Counsel for the respondent, the learned Magistrate was not justified in dismissing the petition filed by him seeking withdrawal of the prosecution under Section 321 Cr.P.C. holding that he had no permission from the Central Government. I see some force in the contention of the learned Counsel for the respondent. A perusal of Section 321 shows that as and when a petition under Section 321 Cr.P.C. is filed by a Public Prosecutor, appointed by the Central Government the court on consideration of the said petition can grant permission for the withdrawal of the case and permission of the Central Government is not required when such a petition is filed by a special Public Prosecutor appointed under sub-section 8 of Section 24 Cr.P.C. Such a permission from the Central Government is required only in cases where a person, who files the petition, is not a Public Prosecutor appointed by the Central Government and such a person can file a petition for withdrawal of the prosecution only after obtaining permission and since the respondent's Counsel, who filed the petition before the learned Magistrate, is a Special Public Prosecutor appointed under sub-section (8) of Section 24 Cr.P.C. no such permission is required for him to file a petition under the said section seeking permission of the Central Government to withdraw the case. Learned Magistrate therefore was not justified in refusing to grant permission to the Special Public Prosecutor of the Central Government to withdraw the case on the ground that he had no permission from the Central Government. 5. On the discussions made above, the proceedings in C.C. No. 84 of 1995 on the file of the Additional Chief Metropolitan Magistrate (Economic Offence), Egmore, Chennai are quashed. This Criminal Original Petition is allowed. Crl. M.P. No. 7451 of 1998 is dismissed.