2015 (1) TMI 979 - HC - Customs

Detention under COFEPOSA - Exportation of misdeclared goods - Prosecution u/s 135 - Failure to act in discharge of their official duty - Held that - there was no evidence at all before the Investigating Officer to show prima facie participation of the accused petitioners not named in the F.I.R. There was also no evidence to show any conspiracy or any evidence to indicate that they had entered into any agreement to do any unlawful act or to commit an offence along with the other accused persons/petitioners. The alleged confessional statement of Shri Vivek Chaturvedi, which is said to have been given to the Investigating Officer also does not disclose about any conspiracy 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. 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/- 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. is prima facie made out against any of the petitioners as there is no evidence to that effect. In view of the above, there is no shred of evidence against the petitioners of Criminal Misc. Case No. 978 of 2005 Jogendra Singh and 11 others to make out any prima facie case for trial against them and they have been unnecessarily dragged in the criminal case. The petition filed by them deserves to be allowed on this ground alone. 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 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. This aspect makes it clear that the concept of Section 197 Cr.P.C. does not get immediately attracted on institution of the complaint case. If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 Cr.P.C. cannot be disputed. - It was also held that the bar created by Section 197 is absolute and complete hence Court cannot take cognizance of complaint against the public servant in respect of an offence alleged to have been committed in discharge of official duty unless sanction is obtained from the appropriate competent authority. 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 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. 2 was under investigation 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 - it cannot be said even prima facie that offence under Section 452, Indian Penal Code has been committed. It is not the case of respondent no. 2 that the petitioners were not serving in DRI, or that the name of the respondent has not cropped up in the statement of one of the accused directly involved in the commission of offence under the Customs Act. It is further not in dispute that presence of respondent no. 2 was required for enquiry/investigation. That is so because notices had been sent to the said respondent before 16-2-2001. The respondent was accordingly taken to Delhi for enquiry in regard to the case under Section 135, Customs Act. In view of above noted facts, wrongful confinement as defined under Section 340, Indian Penal Code cannot be even alleged. There is no material available on record to indicate commission of offence punishable under Section 342 of the Indian Penal Code. - Decided in favour of appellants.

Summary

Issues Involved:
1. Quashing of Charge-sheet No. 35-A of 2003 dated 29-10-2008.
2. Previous adjudication on similar issues.
3. Allegations against government officials.
4. Requirement of sanction under Section 197 Cr.P.C.
5. Legitimacy of the investigation and subsequent charge-sheet.

Detailed Analysis:

1. Quashing of Charge-sheet No. 35-A of 2003 dated 29-10-2008:
The petitions sought relief under Section 482 Cr.P.C. to quash the charge-sheet No. 35-A of 2003 dated 29-10-2008, filed by Police Station Krishna Nagar, Lucknow, which led to cognizance of offenses under multiple sections of the Indian Penal Code. The court found that the issues had already been adjudicated in an earlier judgment dated 4-7-2006, which was upheld by the Supreme Court. The court noted that the investigating agency could not reopen the case and file a new charge-sheet on the same facts and circumstances.

2. Previous Adjudication on Similar Issues:
The court referred to its earlier judgment dated 4-7-2006, which extensively considered the events of 16-2-2001. The judgment had quashed the proceedings against the petitioners, and this decision was upheld by the Supreme Court. The court emphasized that the issues raised had been settled up to the Supreme Court level, and reopening the case constituted an abuse of the legal process.

3. Allegations Against Government Officials:
The respondents had alleged that the petitioners, who were government officials, had committed offenses including house trespass, wrongful confinement, robbery, kidnapping/abduction, and criminal intimidation. The court found no prima facie evidence to support these allegations. It was noted that the officials were performing their duties in connection with an investigation under the Customs Act, and there was no personal enmity involved.

4. Requirement of Sanction Under Section 197 Cr.P.C.:
The court reiterated that the acts committed by the petitioners were in the discharge of their official duties, and therefore, sanction under Section 197 Cr.P.C. was required for their prosecution. The Central Government had already declined the sanction, and the court held that without such sanction, the prosecution could not proceed. The court emphasized that the bar created by Section 197 is absolute and complete.

5. Legitimacy of the Investigation and Subsequent Charge-sheet:
The court scrutinized the legitimacy of the investigation that led to the filing of charge-sheet No. 35-A of 2003. It was found that the initial investigation had concluded with a charge-sheet filed in 2003, which was quashed by the court in 2006. The subsequent charge-sheet filed in 2008 was deemed beyond the jurisdiction of the investigating agency, as the matter had already been adjudicated and settled by the Supreme Court.

Conclusion:
The court allowed both petitions, quashing the impugned charge-sheet No. 35-A of 2003 dated 29-10-2008 and the order dated 4-3-2009 taking cognizance of the offense. The court held that the proceedings were an abuse of the process of law, given the lack of prima facie evidence and the absence of the required sanction under Section 197 Cr.P.C.