TMI Blog2006 (7) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... i Vivek Chaturvedi. D.P. Saxena and P.K. Katiyar, who were named in the F.I.R. of crime No. 14/2002 registered at police station Krishna Nagar, Lucknow in compliance of the direction of the learned Magistrate on 10-1-2002 passed on the application moved by opposite party No. 2 Shri R.K. Singh on 21-12-2001 in respect of occurrence dated 16-2-2001, whereas Criminal Misc. Case No. 978 of 2005 has been filed by S/Shri Jogindra Singh, C. Rajendran, P.K. Misra, Smt. Sanyogita Misra, Y.K. Chowdhary, A.K. Misra, Mohd. Tariq, S.K.S. Tomar, S.K. Srivastava, Raghuraj Singh, Gore Lal and Faridul Hasan, who were not named in the F.I.R. lodged in pursuance of the order passed by the learned Magistrate on 10-1-2002. 3. Common question of fact and law are involved in both the petitions, therefore, they have been heard together and are being disposed of by this common judgment. 4. This legal battle is between the officers of customs and central excise department working under the Government of India. The opposite party No. 2, R.K. Singh, who is the complainant and at whose prayer, the F.I.R. was lodged, was an Inspector, Central Excise and customs posted at Lucknow. He was placed under suspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dubai and Shri Vimal Kumar Jain brother of Sri Naresh Jain residing at Delhi and Shri Manoj Kumar Jain of Hydrabad were involved in this scam. Shri Rajnish Agarwal was knowingly and actively concerned with the export of chalk powder cleared from ICD Hydrabad on 3-1-2001 by misdeclaring the same as bulk drug namely Naproxen. The aforesaid consignment was being exported fraudulently to claim the customs duty exemption under DEPB Scheme. It was also found during the course of investigation that the bogus consignment was exported as per predetermined strategy and active connivance of Shri Naresh Jain and Shri Rajesh Jain who were accepting the same and were to send money meant for compensatory Hawala payments through banking channels in the guise of export proceeds. Shri Rajesh Agarwal was instrumental in procuring chalk powder from M/s. Techno Minerals and getting the same packed and labelled at M/s. Apar Pharma. Shri Rajnish Agarwal took one Shri Janak Prasad Sharma to Shri V.K. Singh (C.H.S) Customs House Agent and gave instructions to Shri Janak Prasad Sharma to sign the documents for export. On reference being given by Sri Ravindra Rastogi his old friend he contacted Shri R.K. Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-2-2001. However, according to him in the morning of 16-2-2001 at about 6.30 a.m. the entire DRI staff of regional unit Lucknow with two officers of DRI New Delhi, namely, D.P. Saxena and P.K. Katiyar (Petitioners 2 and 3) came to his residence, took him out of house saying that he was to go to local office of DRI Lucknow only buy by force and deceitful means took him to Delhi via Aligarh where a sum of ₹ 4,00/- was snatched from his pocket by Shri P.K. Katiyar for filling the fuel in the vehicle, wherein he was being carried away to DRI office Delhi and reached there at about 6.30 p.m. He was then served with summons for inquiry/investigation. 9. It is alleged by the complainant, opposite party No. 2 that at Delhi he was given mental torture and inhuman treatment by DRI officers of New Delhi, who managed a dictated statement from him. He was produced before the Additional Chief Metropolitan Magistrate, Delhi next day i.e. 17-2-2001 wherefrom he was sent to the judicial custody with a direction to produce him at Hyderabad Court. Thereafter he was produced before Economic Offences Court, Hyderabad on 23-2-2001 and was granted bail on 1-3-2001. It is also alleged by Shri R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs was given a notice under the provisions of Customs Act, 1962 by Commissioner, Customs and Central Excise, Hyderabad and he (the opposite party No. 2 Shri R.K. Singh) was fined Rs. Twenty lacs under Section 114(1) of the said Act. He filed an appeal against the said order, which is pending. Shri R.K. Singh, opposite party No. 2 was also detained under COFEPOSA by Andhra Pradhesh Government but his detention was not approved by the Advisory Board. Therefore, he was released from the custody on 15/17-6-2001. In the representation made by him he admitted his visit to Mumbai on the said date but maintained that it was for his personal work and denied the allegation that he had gone there for facilitating the exportation of misdeclared goods. He was also prosecuted under Section 135 of the Customs Act, but was discharged by the trial Court on 25-11-2004. However, a Revision Petition No. 26 of 2005 filed by Deputy Commissioner (Legal) Customs and Central Excise, Hyderabad-II against the said discharge order, has been allowed on 9-1-2006. Now the opposite party No. 2 Shri R.K. Singh has to face the trial there under Section 135(1)(b)(ii) of Customs Act, 1962. 13. It would also be sig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays from the date of appearance of learned counsel for the petitioners. List/put of this case before the Court below on 25-1-2005. It is also provided that the application which has been moved by learned counsel for opposite party No. 2 under Section 340 Cr. P.C. may be moved by him before the Court concerned who shall also take the said application into consideration and dispose of the same within the above said period. In view of what has been stated above, both the above petitions stand finally disposed of. 15. It transpires from the above order that during the pendency of the said petitions an application under Section 340 of the Code was moved before this Court, for prosecuting the petitioners for fabricating a false document of refusal of sanction for prosecution under Section 197 of the Code. Without taking any cognizance of that application a direction was given to opposite party No. 2 to move the same before the learned Magistrate. The copy of letter which is said to be forged and false is annexed as Annexure-4 to the affidavit of Shri Vivek Chaturvedi petitioner No. 1. This is dated 20-2-2002. It was on the representation of Shri R.K. Singh opposite party No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and permissible. Since, under disguise it seeks to review or recall the earlier final order dated 18-1-2005 of this Hon ble High Court and it is barred by Section 362. 21. In my opinion, this argument is totally misconceived. Petitioners had filed the earlier two petitions challenging the summoning order dated 15-3-2003 on various grounds and one of them was that they being public servants, the Magistrate could not take cognizance of any offence against them committed in discharge of official duty or purported exercise of official duty without sanction of the competent government as provided under Section 197 of the Code. 22. Order of this Court passed in these two petitions shows that this Court recorded the arguments of the parties and lastly observed that from the order of the learned Magistrate not a whisper comes out that he applied his mind with respect to the effect that before proceeding against the petitioners sanction was required or not as submitted by the Investigating officer himself. It was on these findings that the earlier summoning order dated 15-3-2003 was quashed and the leaned Magistrate was directed to pass fresh orders after hearing the parties and deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of framing the charge would practically be an empty formality as the trial Court had already taken a definite view in the matter. The High Court in Kissing the impugned order has virtually ignored the spirit behind the direction given and observations made in the earlier order. There is no hard and fast rule that the objection as to cognizability of offence and maintainability of the complaint should be allowed to be raised only at the time of framing the charge. Such was not the intention of the High Court in passing the order dated 15-5-1996. In any case, we have the authority of the judgment of this Court in the case of Ashok Chaturvedi v. Shiual H. Chasnchani - (1998) 7 SCC 698 to hold that the determination of the question as regards the propriety of the order of the Magistrate taking cognizance and issuing process need not necessarily wait till the stage of framing the charge. G.B. Pattanaik J. speaking for the Court observed thus : SCC PP. 700-01, para 5). This argument, however, does not appeal to us inasmuch as merely because an accused has a right to plead at the time of framing of charges that there is no sufficient material for such framing of charges as provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Ltd. v. Mohd. Sharaful Haque - (2005) 1 SCC 122 in para 8 and 9 of which the scope of the inherent jurisdiction of the High Court under Section 482 of the Code and the grounds on which it should be exorcised have been elucidated as follows :- Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court; it only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 31. In State of Haryana and Others v. Bhajan Lal and Others - 1992 Supp (1) SCC 335, the Hon ble Apex Court while dealing with the question of jurisdiction of the High Court under Section 482 has enumerated the following categories of cases where this power can be exercised. To quote the words of the Hon ble Supreme Court, the following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482 Cr. P.C. can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised : (i) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in Section 482 Cr. P.C. which merely recognizes and preserves inherent powers of the High Courts. All Courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a persons anything it gives him that without which it cannot exist). 34. The principle of law as laid down by the Hon ble Supreme Court in the aforesaid cases clearly shows that the High Court will have the jurisdiction to interfere in exercise of its power if it finds that the prosecution is barred by any specific provision of law or there is no offence made out on the basis of the material collected during the investigation or that the allegations made in the report are so absurd that no reasonable man can believe them or that the allegations taken in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including the air tickets from Delhi to Bombay and back and other incidental expenses including the stay in hotel of the party concerned. However, the opposite party No. 2 after being released from the custody on 3-3-2001, had sufficient time to report the matter to the police and in any case immediately after 17-6-2001 when he was again released from detention under COFEPOSA but he moved the application to the learned Magistrate on 21-12-2001 after inordinate delay. 37. In Thulia Kali v. The State of Tamil Nadu - (1972) 3 SCC 393, The Hon ble Supreme Court held that delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets bereft of the advantage of spontaneity, danger creeps in of introduction of coloured version, exaggerated account or connected story as a result of deliberation and consultation. It is therefore essential that the delay in the lodging of the first information report should be satisfactorily explained. 38. Unexplained delay in the present case is sufficient to create suspicion in the truthfulness of the version set out by the complainant in the application dated 21-12-200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they in any way conspired with the other accused petitioners of criminal Misc. Case No. 977 of 2005. 41. In Esher Singh v. State of A.P. - (2004) 11 Supreme Court Cases 585, the Hon ble Apex Court held in paras 34 to 37 as follows :- 34. Section 120B IPC is the provision which provides for punishment for criminal conspiracy. The definition of criminal conspiracy given in Section 120A reads as follows : 120A. When two or more persons agree to do, or cause to be done, - (I) an illegal act, or (II) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy : Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. The elements of a criminal conspiracy have been stated to be : (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. 36. In Halsbury s Laws of England (vide 4th Edn., Vol. 11, p. 44, para 58), the English law as to conspiracy has been stated thus : 58. Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment for which is imprisonment or fine or both in the discretion of the Court. The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be. The actus reus in a conspiracy is the agreement to execute the illegal conduct, not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Shri P.K. Katiyar snatched ₹ 400/- from opposite party No. 2 and paid the same towards the price of the petrol, which was filled in the vehicle, wherein he was being taken to Delhi and that on the cash memo, Shri P.K. Katiyar endorsed that the amount of ₹ 400/- was paid by him. It is alleged that he made this endorsement to claim reimbursement of the amount from the Government. This was a subject matter of documentary evidence. The cash memo with endorsement was best proof The petitioners have denied that any such sum was paid as price of fuel at any Petrol Pump in or near Aligarh or that any such endorsement was made by Shri P.K. Katiyar on any such cash memo or the said amount was claimed by him from the Government. The Investigating Officer could have collected the necessary documentary evidence in support of these allegations but no such evidence was collected and there being no evidence at all, this allegation also goes unsubstantiated by any material and therefore, it can safely be said that there is no evidence of snatching of any sum from opposite party No. 2 or making any endorsement on any cash memo by Shri P.K. Katiyar. No offence under Section 392 I.P.C. i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a fraud was being played by bogus consignments and the government was being cheated of the huge sum of money. 51. The name of the opposite party No. 2 was disclosed by one of the accused of that case. His presence was required by Smt. Sanyogita Mishra, Superintendent, Directorate of Revenue Intelligence and investigation for making an inquiry from him. Summons were sent to him once for 19-1-2001 and other for 14-2-2001 but the opposite party no. 2 did not comply with those summons. Instead, he while seeking exemption on the ground of his illness, sent a signed blank paper with a letter to write any statement according to their own wish and design. This act of the opposite party No. 2, complainant was sufficient to annoy the officers. Conducting the inquiry/investigation. However, two officers S/Shri D.P. Saxena and P.K. Katiyar of Customs and Central Excise were sent to Lucknow with a direction to take assistance of the petitioner No. 1 Shri Vivek Chaturvedi, Deputy Director, Customs and Central Excise posted at Lucknow and to ensure his appearance before the D.R.I officers at Delhi on 16-2-2001. 52. It would be also worth to mention that when the opposite party No. 2 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the house and came back well dressed up and prepared for the journey. He was thereafter taken to Delhi in the said Ambassador Car, which was official car of petitioner Shri Vivek Chaturvedi to Delhi and produced there and his statement was recorded. Petitioner No. 1, Shri Vivek Chaturvedi did not accompany them. 56. It is submitted on behalf of the petitioners that the petitioners 2 and 3 took Shri R.K. Singh, opposite party no. 2 to Delhi in the official car in discharge of their official duty without using any force or employing any deceitful means, therefore, it would neither be an offence punishable under Sections 363 or 365 IPC nor they can be prosecuted without prior sanction of the Central Government. As stated in the bail application, opposite party No. 2 had himself gone in the vehicle of his own accord. No offence of abduction can be said to have been prima facie disclosed because in the definition of abduction in Section 362 of the Code it has been provided that whoever by force compels, or by any deceitful means induces any person to go from any place, is said to abduct that person . The learned counsel for the opposite party no. 2 has urged that reaching of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. 59. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as in discharge of their official duty because if the petitioners would have declined to follow the direction of their superior officers they would have been answerable for the charge of in subordination and dereliction of duty. 64. In the State of Orissa through Kumar Raghvendra Singh and Others v. Ganesh Chandra Jew - (2004) 8 SCC 40, the Hon ble Supreme Court while considering the question of sanction of Section 197 of the Code held as follows :- The pivotal issue i.e. applicability of Section 197 of the Code needs careful consideration. In Bakhshish Singh Brar v. Gurmej Kaur this Court while emphasizing on the balance between protection to the officers and the protection to the citizens observed as follows : (SCC p. 667, para 6). It is necessary to protect the public servants in the discharge of their duties ...In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There can be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. 65. In Arulswami v. State of Madras (AIR 1967 SC 776) Hon ble Apex Court held :- It is not therefore, every offence committed by a public servant that requires sanction for prosecution under Section 176(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was required in the present case under Section 197 of the Code before prosecuting them. This is why the Investigating Officer has also made a request through proper channel for according sanction for prosecution of the petitioners. 71. Once it is held that sanction was must and there being no sanction the petitioners cannot be permitted to be subjected to the ordeal of the trial and it would amount to the abuse of the process of the Court to permit them to be tried. The Central Government has already declined the sanction as is apparent from the annexure 4 to the affidavit. It was within the jurisdiction of the Central Government to accord or refuse the sanction for prosecution. The Central Government after examining the matter has declined the sanction. Order of the Central Government has been authenticated and communicated to all concerned including Shri R.K. Singh opposite party No. 2. The opposite party No. 2 has filed an application under Section 340 of the code before the learned Magistrate but it would appear from the order of the learned Magistrate that Shri A.K. Singh Special Secretary-cum-Chairman of the Central Board of Customs and Central Excise filed an affidavi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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