TMI Blog2015 (1) TMI 979X X X X Extracts X X X X X X X X Extracts X X X X ..... pposite party no. 2 to Delhi enroute near Aligarh, 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 case 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the investigating agency filed charge-sheet No. 35A/2003 dated 29-10-2008 that has been impugned in this petition. At this point of time, in the impugned charge-sheet, even Senior Officers in the Ministry of Finance, Government of India, who dealt with the issue of considering grant or denial of sanction to prosecute have been implicated. The accused include Senior Officers who were not even related to the incident of 16-2-2001. The Court has been informed that petitioner no. 1—Jogendra Singh, IRS, superannuated as Chairman, Customs and Central Excise Settlement Commission. Petitioner No. 15, Chandrahas Mathur, IRS superannuated and earlier served as Member, Customs and Central Excise Settlement Commission. Likewise petitioner nos. 10, 11, 13, 14 and 15 are IRS Officers and hold senior positions. The said persons had no role to play in regard to the incident of 16-2-2001. Allegation is that the communication vide which Naseem Arshi, Under Secretary, Revenue Department, Government of India, had conveyed denial of sanction to prosecute, is forged. There is no allegation of personal enmity of the petitioners against respondent no. 2; case under Customs Act against respondent no. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Manish Mani Sharma, Nisar Ahmad, Agendra Sinha, H.K. Mishra and R.B.S. Rathour, Govt. Advocates, for the Respondent. ORDER This order shall dispose of Crl. Misc. Case No. 1635 of 2009 titled Jogendra Singh and 14 others v. State of U.P and Sri R.K. Singh and Crl. Misc. Case No. 1407 of 2009 titled Raghuraj Singh and 2 others v. State of U.P and Shri R.K. Singh . 2. Both the petitions are being disposed of vide a common order, because in both the cases the petitioners seek relief under Section 482 of the Code of Criminal Procedure (for short Cr.P.C. ) of quashing charge-sheet bearing No. 35-A of 2003, dated 29-10-2008 filed by Police Station Krishna Nagar, Lucknow in the court of Special Chief Judicial Magistrate (Economic Offence), Lucknow arising out of case crime No. 14 of 2002 in which cognizance of offence under Sections 452, 342, 504, 506, 392, 367, 193, 211, 34, 420, 467, 468, 471, 347, 120B of the Indian Penal Code has been taken vide order dated 4-3-2009. 3. For reference to record, Crl. Misc. Case No. 1635 of 2009 titled Jogendra Singh and 14 others v. State of U.P and Sri R.K. Singh is being taken up. 4. It has been contended by learned Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 001, the impugned proceedings were initiated by the respondent which culminated in filing of charge-sheet dated 17-2-2003 bearing No. 34 of 2003. The case set up by respondent no. 2 is that he did not receive notices and that he was kidnapped from his house, and taken to Delhi. Allegation also is that ₹ 400/- were snatched from him on the way to Delhi. 9. It needs to be clarified that case crime No. 14 of 2002 was lodged at the instance of respondent no. 2 - R.K. Singh while naming three accused namely petitioner nos. 7, 8 9. These are the persons who allegedly visited the house of respondent no. 2 on 16-2-2001 to take him to Delhi for enquiry. Petitioner Nos. 8 and 9 accompanied respondent no. 2 to Delhi. Charge-sheet bearing No. 35 of 2003 was however filed against fifteen accused, including petitioner nos. 7 to 9. 10. The accused in charge-sheet No. 35 of 2003 filed two petitions under Section 482 Cr.P.C. viz. Crl. Misc. Case No. 978 of 2005 titled Jogendra Singh and 11 others v. State of Uttar Pradesh and Crl. Misc. Case No. 977 of 2005 titled Vivek Chaturvedi and two others v. State of Uttar Pradesh - 2014 (308) E.L.T. 11 (All.). Both the petitions were allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Naresh Jain residing at Delhi and Shri Manoj Kumar Jain of Hyderabad were involved in this scam. Shri Rajnish Agarwal was knowingly and actively concerned with the export of Chalk powder cleared from ICD, Hyderabad 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 pre-determined 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. Sri 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. Singh, opposite party no. 2, Inspector o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 by force and deceitful means took him to Delhi via. Aligarh where a sum of ₹ 400/- was snatched from his pocket by Sri 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. 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.K. Singh, opposite party no. 2, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Pradesh 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 mis-declared 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. It would also be significant to mention that when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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. 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. 2, whereby he had requested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acy between accused persons. They had gone there with a view to persuade opposite party no. 2 to accompany the officers of Delhi to go there for the purpose of inquiry, where for he had already been summoned. There being no evidence at all to prove any conspiracy, none of the accused petitioners could be prosecuted for the offence under Section 120-B IPC. Learned counsel for opposite party no. 2 complainant urged that in the log book, the name of opposite party No. 2 was not shown. This is indicative of conspiracy. In the log book, there are certain columns prescribed, which are filled in by the driver and countersigned by the officer having control over the vehicle. There is no column for mentioning the names of all those who travelled in the vehicle. So, this argument is also bereft of any substance. There is another allegation that while taking the opposite party no. 2 to Delhi enroute near Aligarh, 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 case memo, Shri P.K. Katiyar endorsed that the amount of ₹ 400/- w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods were not the petitioners, they were totally different officials, who had found that a fraud was being played by bogus consignments and the government was being cheated of the huge sum of money. 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 to 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. officials at Delhi on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Saxena and P.K. Katiyar and he accepted their request and went inside 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. It is submitted on behalf of the petitioner 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 on 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 induce any person to go from any place, is said to abduct that person . The learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne by the public servant in the course of his service 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the act committed by them was 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 insubordination and dereliction of duty. x x x x x Obviously, the acts performed by the petitioners in taking the complainant/opposite party No. 2 to Delhi can be said to have been done in discharge of official duty because the refusal or non-compliance of the orders would have made them liable for disciplinary action on the administrative side. Therefore, sanction 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. 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 jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the Hon ble Supreme Court, it being Review Petition (Criminal) No. 281 of 2006, which was dismissed vide order, dated 16-11-2006 (Annexure-11). The order reads as follows : We have carefully gone through the review petition and the connected papers. We do not find any merits in the petition for review, stands accordingly dismissed. 13. Above-noted facts and circumstances of the case clearly establish that the issue had been considered and settled upto the level of Hon ble Supreme Court. However, the respondent-complainant wanted to somehow prosecute the petitioners. For the said purpose the respondent no. 2 devised a novel method which would indicate malicious prosecution. 14. Respondent-complainant had filed an application under Section 340 Cr.P.C. to plead that the order vide which sanction to prosecute some of the petitioners had been denied, was forged. Application was dismissed by the magistrate vide order, dated 18-2-2005 (Annexure-8). The magistrate recorded in its order, after considering the relevant material including the affidavit of Shri A.K. Singh, Commissioner, Central Board of Excise and Customs, Government of India, that there was no reason to proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s passed on 28-1-2009 (Annexure-19) in the following terms : The instant contempt application has been filed by the applicant alleging disobedience of the order dated 16-4-2008 passed by this Court in Writ Petition No. 1556 (MB) of 2008. A perusal of the said order shows that this Court while disposing of the writ petition of the applicant did not fix any time limit for the opposite party to comply with the order dated 16-4-2008. In view of the aforesaid, it is directed that the opposite party shall ensure compliance of the order dated 16-4-2008 passed by this Court in Writ Petition No. 1556 (MB) of 2008 within one month from the date of production of certified copy of this order before him. Learned counsel for the applicant shall file certified copy of this order before the opposite party within a week from today. List this case on 18-3-2009. 20. It appears that under pressure of order passed by the High Court, the investigating agency filed charge-sheet No. 35A/2003 dated 29-10-2008 that has been impugned in this petition. At this point of time, in the impugned charge-sheet, even Senior Officers in the Ministry of Finance, Government of India, who dealt w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Case No. 1407 of 2009, only for commission of offence under Sections 452, 342, 392, 367, 504, 506 of the Indian Penal Code. It has been stated that there is no justification for filing charge-sheet under the rest of the provisions for which impugned charge-sheet has been filed. 25. Considering the above, this Court is required to examine the case of petitioner nos. 7, 8 and 9 namely Vivek Chaturvedi, P.K. Katiyar and D.P. Saxena and the petitioners in Crl. Misc. Case No. 1407 of 2009 Raghuraj Singh and 2 others v. State of U.P and another , only for the offences under Sections 452, 342, 392, 367, 504, 506 of the Indian Penal Code. 26. Considering the statement given by learned counsel for respondent no. 2 it becomes apparent that the said respondent is pressing charges against above-mentioned petitioners for house trespass, wrongful confinement, robbery, kidnapping/abduction and criminal intimidation. It further becomes apparent that it is the case of respondent no. 2 that the above named six petitioners committed offences in context of the events of 16-2-2001, when the respondent no. 2 was taken from Lucknow to Delhi. 27. Petitioner nos. 8 and 9 namely P.K. Katiyar and D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion on account of detention of two consignments at Mumbai; the officers, who had intercepted the goods, are not the petitioners, and are different officials; the name of respondent no. 2 was disclosed by one of the accused in the case under Customs Act; presence of respondent no. 2 was required by Smt. Sanyogita Mishra, Superintendent, Directorate of Revenue Intelligence for making enquiry from him; the officers/petitioner nos. 7, 8 9 had come to the house of respondent no. 2 on 16-2-2001 to ensure his presence before DRI official at Delhi in connection with official business; respondent no. 2 did not take any ground in regard to house trespass, kidnapping/abduction or snatching of money when he was produced before Metropolitan Magistrate at Delhi; in the application for bail filed on behalf of respondent no. 2, no allegation was made that respondent no. 2 had been forcibly taken from his house, or any deceitful means had been employed to take him from his house, rather it was the case of the respondent in those applications that respondent no. 2 accepted the request of petitioner nos. 7, 8 9, went inside the house, came back well dressed and prepared for journey to Delhi. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is legal bar against prosecution of the petitioners, because the acts done by the petitioners have been done in discharge of their official duties. Continuance of proceedings would be an abuse of the process of the law for the reason that sanction to prosecute has been denied by appropriate authority. In such circumstances, cognizance of the offence could not have been taken by the Court below. 37. This Court has also considered the legality and propriety in respondent no. l and the investigating agency filing impugned charge-sheet bearing No. 35A/2003 on 29-10-2008, in regard to case crime No. 14 of 2002. From the above-noted facts and circumstances, it has become abundantly clear that after investigation of the case registered as crime No. 14 of 2002 had been concluded, charge-sheet bearing No. 35 of 2003 dated 12-2-2003 had been filed. The said charge-sheet bearing No. 35 of 2003, proceedings arising therefrom, including the order of summoning were challenged before this Court in Crl. Misc. Case No. 978 of 2005 Jogendra Singh and 11 others v. State of UP and Crl. Misc. Case No. 977 of 2005 titled Vivek Chaturvedi and two others v. State of Uttar Pradesh . The said t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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