Order Date: 20 July 2022 

Facts-

• The Petitioners, J.Ananad and K.Sivamani have filed this petition to quash the proceeding for the offences under section 135(1)(b) of the customs Act against the petitioners.
• The Respondent, Assistant Commissioner of Customs, on the basis of intelligence, conducted road checks and intercepted vehicle. During the road checks, they apprehended the petitioners for smuggling gold biscuits of foreign origin weighing about 15Kg. Subsequently, a complaint was filed before the Magistrate along with the information about the smuggled gold.
• The petitioners submitted that the Magistrate without examining any of the witnesses and without following mandatory provisions under Cr.P.C like recording of statement of witnesses, straightaway issued summons to the Petitioners.

Issue-

• Whether issuance of summons by the Magistrate without recording the statement of the accused is tenable in law?

Order-

• The Single Bench of Hon’ble High Court observed that the Magistrate without examining any witnesses cannot take cognizance on the complaint lodged by the complainant and issue summons to the accused. The Magistrate has the option to either comply with Section 200 of the Code of Criminal Procedure, 1973 wherein the complainant or such other witnesses present upon taking cognizance are examined, or to postpone the enquiry process under Section 202 of Cr.P.C. 
• Further, held that the Magistrate cannot take cognizance as against the accused before recording their statements.
• The Court quashed the proceedings of the Magistrate and granted liberty to the Petitioner to file a petition under Section 245(2) of Cr.P.C. in the manner known to law.
• Therefore, the impugned proceedings cannot be sustained as against the petitioner and it is liable to be set aside and the Petition is allowed.