9911796707
TMI Blog2003 (3) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... ant time and at present he is working as Member of Indian Customs and Central Excise Service Group 'A'. Petitioners No. 4 and 6 were working as Superintendent of Customs in Air Intelligence Unit and have retired in 1987 and in February, 2001 respectively. 4. On 27-11-1985 on prior information received from Air Intelligence Security Staff, the Customs Intelligence Officer on duty at Sahar Airport intercepted two Air India loaders by name Shri Balkrishnan and Shri Motiram Devram Tahsildar, who are original complainants. Balkrishnan is respondent in one Petition and he has filed one complaint. Tahsildar had also filed complaint. However, that complaint has been dismissed. Balkrishnan and Tahsildar were trying to remove some cargo in a cardboard carton from a container which had arrived in Mumbai from Singapore, after breaking open the seal. They had offered some money to the watchman in order to allow them to open cargo and take away the contents thereof. But the watchman did not oblige the loaders. The Officers of the Customs, Air Intelligence Unit with the assistance of the Security Staff of the Air India, intercepted them. They were examined in presence of Panchas. The brief case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leg there was about 4" inches above the ankle an old weal mark noticed. Similarly on the body of Balkrishnan some old contused mark was find on the left leg on the inner aspect of the knee. The learned Magistrate observed that through the accused made complaint of ill-treatment, he did not find any substance in the complaint in view of the finding of old marks stated above. Bail was however granted and it appears, it was not even opposed. However, since no bail was furnished by the respondents, they were sent to jail. Further it is pertinent to note that neither the respondents applied for being examined by Registered Medical Practitioner or Govt. Medical Officer nor did the learned Magistrate give any direction in consonance with his findings that the marks were old. The respondents were sent to jail custody on 29-11-1985 and on 2-12-1985 they went to the Jail Hospital where the Jail Medical Officer examined them and issued medical certificate. The Jail doctor however, found certain injuries which were not noticed by the Magistrate and which are not even described either as old or recent by the doctor and even age of the injuries is not stated by him. The injuries found on the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he three respondents. These orders were challenged in appeal before CEGAT. The orders passed in adjudication proceedings have been confirmed and the order of CEGAT has not been challenged thereafter and has become final. 8.Respondents filed three different private complaints in the Court of the learned Magistrate making serious allegations against the Customs Officers. Learned Magistrate recorded findings that one of the offence was triable exclusive by the Sessions Court hence all the three cases were committed to the Court of Sessions . In the Sessions Court, the Petitioners (Customs Officers) filed application for discharge to which detailed reply was filed by the respondents. Learned Sessions Judge after hearing arguments, dismissed the discharge application which order has been impugned in the present petition. 9.According to the Petitioners, who are arrainged as accused in the Sessions trial, the complaints filed against them are false and concocted. It is obvious on the face of it inasmuch as the learned Magistrate did not find any fresh injury on the body of respondents. The alleged incident had taken place on 27th and 28th November, 1985 whereas medical certificates prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y six persons which could have led to their death and therefore cannot claim protection of Section 197 of Cr. P.C. and Section 155 of Customs Act. 11. One affidavit is filed in the Petition No. 311 of 2002 by L.P. Gaur when the matter came for hearing and he has raised issue of maintainability of Petition filed by Union of India which was also raised at the time of admission of the Petition Application for discharge was filed long after committal of case to the Sessions Court only when the trial was likely to begin and the impugned order could have been challenged by the accused by filing revision application to the High Court. They have chosen not to challenge that order and this Petition has been filed through them by Union of India. The same is not maintainable. There is no propriety of Union of India filing the Petition. Serious injury was found on Balkrishnan and it is necessary that the Petitioners should be tried before Sessions Court. 12.In this court Mr. M.I. Sethna, learned Senior Counsel with Mr. Mehta, Mr. J.C. Satpute appeared for the Petitioners and Union of India and Shri A.P. Mundergi with Sanjog Parab appeared for the respondents. 13.Considering the factual aspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by these Officers one of whom was holding stick and injuries caused were bleeding and the assault went on for quite some time. They were beaten by first blows, kicks with shoes and different parts of the body and according to Mr. Gaur he even became unconscious for a while as a result of this assault and even after regaining consciousness he was further beaten on different parts of the body by fist blows and kicks for quite some time. The finding of one old weal mark on Gaur's body and one old contusion on Balkrishnan led the Magistrate to a factual conclusion on spot that the complaint need not be taken seriously as such complaints are made by Prisoners to the Magistrate day in and day out and he has to decide which one deserves attention and which are made in order to get out on bail or to retract the statements recorded. 15.The respondents were found to have smuggled huge gold as on today their appeals against adjudication orders imposing personal penalty on them have been dismissed. They are facing prosecution under the Customs Act and they were interested in creating obstructions in their prosecution. It also appears to be obvious that they were interested in coercing the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anything purporting to be done in pursuance of this Act, without giving the Central Government or such officer a month's previous notice in writing of the intended proceedings and of the cause thereof or after the expiration of three months from the accrual of such cause. 18.On behalf of respondents, serious objection was raised at the time of admission and even during the course of arguments that the petition is not maintainable inasmuch as it is filed by the Union of India. It was contended by Mr. Mundergi, learned Counsel for the respondents that Union of India has no locus standi to file such petition. Union of India cannot be said to be aggrieved party. The person aggrieved by the order of the Sessions Judge are accused in Criminal Case pending before him. Their discharge applications are rejected and each of them had a right to challenge that order before the High Court. They are claiming that prosecution against them is not maintainable in the absence of sanction in view of the Section 197 of Cr. P.C. According to them and even according to the Union of India, the Central Government/the Union of India is sanctioning authority and how can the sanctioning authority be said to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to protect honest, sincere and dare devil officers entrusted with the hard duty of controlling crimes like smuggling. 19.There can also be a case where even an association of officers may approach the Government if it finds that various members of it are being subjected to such harassment by filing false complaints against them by the persons against whom they are taking action or are intending to take action and on such a representation and a request being made by the association, the Government should be in a position to challenge the said prosecution on the ground that it is filed without obtaining necessary order of sanction. I, therefore do not find any force in the argument of Mr. Mundergi that Union of India has no locus standi to file these petitions. I also find sufficient force in the arguments of Mr. Sethna that the Government feels aggrieved as it is bye-passed or side tracked by filing of the prosecution without approaching the Government for sanction. The argument of Mr. Mundergi is based on the hypothesis that in case, anybody approaches the Government for sanction in normal course the Government should grants sanction. In case if refuses, the concerned person may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n precedent. 23.Section 155 of the Customs Act is totally different from Section 197 of Cr. P.C. it protects all officers irrespective to their designation if the act is done or intended to be done in good faith in pursuance of the Act. Petitioners are Customs officers. They are highly placed officer attached to Air Intelligence Unit for preventing smuggling activities and I am convinced this point has been raised only because the learned Sessions Judge has made such remark in his order when even in the Sessions Court in reply to the discharge application, no such assertion was made. 24There is admittedly no compliance with the. provisions of Section 155 of the Customs Act and on that ground also the prosecution of the Petitioners is not maintainable. 25.This takes me to consider the issue of sanction. Number of Judgments have been cited by both the counsel, I would however restrict reference to few of them, I would like to point out that I had an occassion to consider this issue in a case in which facts were similar and that Judgment is reported in the matter of A.K. Sahdev and Anr. v. Ramesh Nanji Shah and Anr., Writ Petition. No. 549 of 1996, Cri., L.J. 2645, 1998. "In that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In order to apply the provisions of Section 197 of Cr. P.C. two conditions must be fulfilled; one is that the offence mentioned therein must be committed by a public servant and the other is that the public servant employed in connection with the affairs of the Union or a State is not removable from his office save by or with the sanction of the Central Government or the State Government, as the case may be. The object of the sanction is to provide guard against vexatious proceedings against the Judges. Magistrate and Public servants and to secure the opinion of superior authority whether it is desirable that there should be a prosecution. If on the date of the complaint itself it is incumbent upon the Court to take cognizance of such offence only when there is a previous sanction then unless the sanction to prosecute is produced the Court cannot take cognizance of the offence. Naturally at that stage the court taking cognizance has to examine the acts complained of and see whether the provisions of Section 197 of Cr. P.C. are attracted. If the above two conditions are satisfied then the further enquiry would be whether the alleged offences have been committed by the public servant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused did something which he was not bound to do and it was held that the sanction was necessary. The case of Mrs. Mary Kutty Thomas v. State of Maharashtra reported in 1983 (2) Bombay Cases Reporter 73 (1983) Cr L.J. 1654, was also cited before me in that case and has also been cited here. It is clear that it was a case on facts which were totally different. What is material to be noted that is if it is not the legality or the serious nature of the act that takes away the protection. What is required to be seen is whether there is reasonable nexus between the act complained of and the discharge of official duty or even purported discharge of official duty. If the act is totally not connected, the case should not be covered by Section 197 of Cr. P.C. For example if a woman is arrested in connection with any offence and while in custody she complaints that she was ravished by the officer under the garb of interrogating her then the protection of section 197 IPC may not be availed of as the act of rape cannot be said to be in any way connected with the discharge or purported discharge of the official duty of interrogatory or required of shelter. The contention of the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e something to do or must be related in some manner, with the discharge of official duty. No question of sanction can arise under section 197 unless the act complained of is as offence the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for discharge of the duty. As this question will arise only at a later stage when trial proceeds on the merits. What a court has to find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of official duty, though possibly in excess of the needs and requirements of the situation." 28.The facts of the present case show it was serious case in which 30 kgs. Gold was seized. It was seized on the basis of information received and it was absolutely necessary to record the statements of the accused in order to find out the persons involved in the smuggling activities and when during the course of recording such statement. The alleged assault was committed then it cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sity of sanction before taking of cognizance by the Court of any such complaint. 31.In the case of Gostao Fernandes v. State at the instance of D.S.P. CBI, Bombay, 1996 (82) E.L.T. 433 (S.C.) it is held that Customs Officer are entitled for protection from Criminal Prosecution under Section 155 read with Section 106 of Customs Act. The appellant in that case was on official duty as Preventive Officer. In discharge of his official duty he had chased a speeding Contessa car driven by the deceased. In an attempt to stop the car for searching the same, he overtook the car and having disclosed his identity asked the deceased to stop the car but when the driver had attempted to flee with the car, he jumped into the same and tried to take out the ignition key in order to stop the vehicle. He was also revealed that the appellant had received various injuries including incised wounds which on the basis of medical report were likely to have been caused at the time when attempt to stop the car was made. Scuffle was between the appellant and the smuggler during the course of which big size knife carried by the smuggler was used, the smuggler died because of the injuries sustained at the hands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facie impression that we have formed at this stage on the materials available to us at present. It may not be possible to come to a conclusive finding about the falsify or otherwise of the complaint. But then we think that it would amount to giving a go-by to Section 108 of the Gold (Control) Act, if cases of this type are allowed to be perused to their logical conclusion, i.e. to that of conviction or acquittal. In this view of the matter we do not feel inclined to upset the impugned order, even though perhaps the matter may have required further evidence before quashing of the complaint could be held to be fully justified. The appeal is accordingly dismissed." 34.Coming to the facts and circumstances of the present case the hazardous consequences of the impugned order cannot be overlooked. Respondents were found indulging in smuggling and have been penalized for the very act for which they are being prosecuted. They have succeeded in protracting their prosecution by resorting to the tactics of filing a false and concocted complaint against the protectors of law who did dare arrest them. The practical result of the order is that their activities must have continued unobstructed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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