Withdrawal of prosecution filed in a court – reg. — Dated 28–2‑2015 — Central Excise

Cir­cu­lar No.998/5/2015-CX

dat­ed the 28th Feb., 2015

Your kind atten­tion is invit­ed to the issue of with­draw­al of pros­e­cu­tion after it has been filed in a court of law. Instruc­tions in this regard were issued on the Cen­tral Excise side vide Cir­cu­lar no. 30/30/94-CX dt 4–4‑1994. The rel­e­vant part of the instruc­tion con­tained in para­graph 5 is repro­duced below -

In cas­es where a com­plaint has already been filed in the court, it will be upto the court to decide whether or not to pur­sue pros­e­cu­tion in terms of Sec­tion 257 and 321 of Cr. P.C. 1973. If the order for with­draw­al has been giv­en by a court, the pros­e­cu­tion can be with­drawn by the Assis­tant Col­lec­tor after get­ting a for­mal order from the Prin­ci­pal Collector.

2. Since then an impor­tant judg­ment of Hon’ble Supreme Court has laid the law on the issue of rela­tion between adju­di­ca­tions pro­ceed­ings and pros­e­cu­tion in case of Rad­heshyam Kejri­w­al [2011(266)ELT294(SC) or 2011-TIOL-19-SC-FEMA] . In this judg­ment Hon’ble Supreme Court has laid the fol­low­ing guide­lines in para­graph 19 -

           “ The ratio which can be culled out from these deci­sions can broad­ly be stat­ed as follows :-

             (i) Adju­di­ca­tion pro­ceed­ing and crim­i­nal pros­e­cu­tion can be launched simultaneously;

             (ii) Deci­sion in adju­di­ca­tion pro­ceed­ing is not nec­es­sary before ini­ti­at­ing crim­i­nal prosecution;

          (iii) Adju­di­ca­tion pro­ceed­ing and crim­i­nal pro­ceed­ing are inde­pen­dent in nature to each other;

         (iv) The find­ing against the per­son fac­ing pros­e­cu­tion in the adju­di­ca­tion pro­ceed­ing is not bind­ing on the pro­ceed­ing for crim­i­nal prosecution;

        (v) Adju­di­ca­tion pro­ceed­ing by the Enforce­ment Direc­torate is not pros­e­cu­tion by a com­pe­tent court of law to attract the pro­vi­sions of Arti­cle 20(2) of the Con­sti­tu­tion or Sec­tion 300 of the Code of Crim­i­nal Procedure;

        (vi) The find­ing in the adju­di­ca­tion pro­ceed­ing in favour of the per­son fac­ing tri­al for iden­ti­cal vio­la­tion will depend upon the nature of find­ing. If the exon­er­a­tion in adju­di­ca­tion pro­ceed­ing is on tech­ni­cal ground and not on mer­it, pros­e­cu­tion may con­tin­ue; and

        (vii) In case of exon­er­a­tion, how­ev­er, on mer­its where alle­ga­tion is found to be not sus­tain­able at all and per­son held inno­cent, crim­i­nal pros­e­cu­tion on the same set of facts and cir­cum­stances can­not be allowed to con­tin­ue under­ly­ing prin­ci­ple being the high­er stan­dard of proof in crim­i­nal cases.

In our opin­ion, there­fore, the yard­stick would be to judge as to whether alle­ga­tion in the adju­di­ca­tion pro­ceed­ing as well as pro­ceed­ing for pros­e­cu­tion is iden­ti­cal and the exon­er­a­tion of the per­son con­cerned in the adju­di­ca­tion pro­ceed­ing is on mer­its. In case it is found on mer­it that there is no con­tra­ven­tion of the pro­vi­sions of the Act in the adju­di­ca­tion pro­ceed­ing, the tri­al of the per­son con­cerned shall be in abuse of the process of the court. ”

3. It is there­fore direct­ed that where on iden­ti­cal alle­ga­tion a noticee has been exon­er­at­ed in the qua­si-judi­cial pro­ceed­ings and such order has attained final­i­ty, Chief Com­mis­sion­er shall give direc­tion to the Cen­tral Excise Offi­cer in the con­cerned Com­mis­sion­er­ate to file an appli­ca­tion through Pub­lic Pros­e­cu­tor request­ing the Court to allow with­draw­al of the Pros­e­cu­tion in accor­dance with law. These instruc­tions shall mutatis-mutan­dis apply to the pros­e­cu­tion filed under the Finance Act, 1994 and under the Cus­toms Act, 1962.

4. Nec­es­sary instruc­tions may be issued in this regard. Hin­di ver­sion would follow.

(ROHAN)

Under Sec­re­tary to the Gov­ern­ment of India

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