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2022 (4) TMI 758 - HC - CustomsProsecution against Senior Intelligence Officer of the DRI - requirement of sanction to prosecute the petitioners - evasion of duty - undervaluation - illegal transactions - allegation that petitioners did not deliberately enquired with the supplier - Whether there is necessity to obtain sanction to prosecute the petitioners under Section 197 Cr.P.C.? - HELD THAT - The Central Government by notification entrusted to the officers mentioned in the notification specific functions like search, seizure and arrest as a functional necessity to prevent the problem of smuggling to combat the inability of the customs department to be present across the length and breadth of the country. Thus, the Central Government considered even Class-IV employees of the Customs Department working in any place in India and all the officers of the DRI as appointed by the Central Government by the above notification. The petitioners being the Senior Intelligence Officer and the Intelligence Officer of Customs appointed as Customs Officers under Section 4(1) of the Customs Act are undoubtedly public servants acting in discharge of their official duties. Hence, sanction of Government is required before prosecuting them for any offences committed by them while discharge of their official duties. Whether the offences alleged against the petitioners can be considered as committed in discharge of their official duties or not? - HELD THAT - In the present case, the allegations were made against the petitioners about tampering of evidence while they were conducting search at the office premises and at the residence of the 2nd respondent and seizure of certain documents. Thus, the offences were alleged to have been committed by the petitioners while they were performing their official duties of search for evidence and seizure of the documents in discharge of their official duty. Section 197 of the Code of Criminal Procedure if construed too narrowly, it can never be applied, as it is no part of an official's duty to commit an offence and never can be, as observed by the Hon ble Apex Court in SHREEKANTIAH RAMAYYA MUNIPALLI VERSUS THE STATE OF BOMBAY 1954 (12) TMI 34 - SUPREME COURT . No narrow interpretation can be given to Section 197 Cr.P.C., as the acts alleged against the petitioners are reasonably connected in discharge of their official duties. As such, cognizance cannot be taken by the Court without the requisite sanction of the appropriate Government. As such, taking cognizance of the offences by the Court against the petitioners without prior sanction is considered as illegal and void ab initio. The use of the words no and shall under Section 197 Cr.P.C. would make it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete and taking of the cognizance is barred under law - Issue is answered in favour of the petitioners holding that the petitioners are public servants and there is necessity of sanction under Section 197 Cr.P.C. to prosecute them for the offences alleged against them from the competent Government by which they were appointed and were not removable from their office. Whether the petitioners were entitled to protection under Section 155 of the Customs Act? - HELD THAT - Sub-Section (1) of Section 155 of the Customs Act gives a protection to the Central Government or any officer of the Government or a local authority for anything which is done or intended to be done in good faith in pursuance of the Act or the rules or regulations. There is a bar on filing a suit, prosecution or other legal proceedings, if the act is done in good faith - there are no merit in the contention of the learned counsel for the 2nd respondent that the protection was available only when a person was accused of offence under the Customs Act, but not of the offence under IPC. As in the above case, relied upon by the learned counsel for the petitioners also the Customs Officers were alleged to have committed offence under Section 302 IPC by causing death of a person, wherein the Hon ble Apex Court came to the protection of the Customs Officers by saying that the protection under Section 155 of the Customs Act was available to them. As such, point No.2 is also answered in favour of the petitioners. Whether the proceedings in CC No.57 of 2016 are liable to be quashed under Section 482 Cr.P.C.? - HELD THAT - As the intention behind Section 197 Cr.P.C. as well Section 155 of the Customs Act is to protect the public servants acting in discharge of their official duties from facing harassive, retaliatory, revengeful and frivolous proceedings, the initiation of prosecution against them without sanction from the competent Government would erode their confidence in discharging their duties efficiently. Conducting parallel proceedings against them for the acts done by them in discharge of their official duties and rendering them liable for prosecution would not allow them to discharge their duties fearlessly. As such, it is considered fit to allow the petition quashing the proceedings against the petitioners. The Criminal Petition is allowed.
Issues Involved:
1. Necessity of sanction to prosecute the petitioners under Section 197 Cr.P.C. 2. Entitlement of the petitioners to protection under Section 155 of the Customs Act. 3. Liability of the proceedings in CC No.57 of 2016 to be quashed under Section 482 Cr.P.C. Detailed Analysis: 1. Necessity of Sanction to Prosecute the Petitioners under Section 197 Cr.P.C.: The Court examined whether the petitioners, being public servants, required sanction under Section 197 Cr.P.C. to be prosecuted. Section 197 Cr.P.C. mandates that no court shall take cognizance of an offense committed by a public servant in the discharge of official duties without prior sanction from the appropriate government. The petitioners argued that they were appointed by the Central Government and thus required such sanction. The Court referred to Notification No.31/97-Cus.(N.T.), which confirmed that officers of the Directorate of Revenue Intelligence (DRI) are appointed by the Central Government. The Court concluded that the petitioners, being Senior Intelligence Officer and Intelligence Officer, were indeed public servants acting in discharge of their official duties, and thus, sanction was required before prosecuting them. The Court emphasized that the acts alleged against the petitioners were reasonably connected to their official duties, making the requirement of sanction under Section 197 Cr.P.C. applicable. 2. Entitlement to Protection under Section 155 of the Customs Act: The Court analyzed whether the petitioners were entitled to protection under Section 155 of the Customs Act, which provides immunity to government officers for actions done in good faith under the Act. The petitioners contended that their actions during the search and seizure operations were in good faith and in discharge of their official duties. The Court referred to the precedent set by the Hon’ble Apex Court in Costao Fernandes v. State at the instance of D.S.P., CBI, Bombay, which granted protection to Customs Officers under similar circumstances. The Court held that the petitioners’ actions were inseparably linked to their official duties under Section 105 of the Customs Act, and thus, they were protected against prosecution under Section 155(1) of the Customs Act. 3. Liability of the Proceedings in CC No.57 of 2016 to be Quashed under Section 482 Cr.P.C.: The Court considered whether the proceedings against the petitioners should be quashed under Section 482 Cr.P.C., which allows for the quashing of proceedings that are frivolous or an abuse of process. The petitioners argued that the prosecution against them was initiated without the mandatory sanction and was motivated by malice. The Court referred to the judgment in D. Devaraja v. Owais Sabeer Hussain, which emphasized the need to protect public servants from harassive and frivolous proceedings. The Court found that the initiation of prosecution without the requisite sanction was illegal and void ab initio. Consequently, the Court held that the proceedings in CC No.57 of 2016 against the petitioners were liable to be quashed to prevent abuse of process and to ensure that public servants could discharge their duties without fear of retaliatory actions. Conclusion: The Court allowed the criminal petition, quashing the proceedings in CC No.57 of 2016 against the petitioners (A2 and A3) on the file of XII Additional Chief Metropolitan Magistrate, Hyderabad. It emphasized the necessity of obtaining sanction under Section 197 Cr.P.C. and affirmed the protection under Section 155 of the Customs Act for actions taken in good faith in the discharge of official duties.
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