2023 (6) TMI 238 - HC - Central Excise

Requirement of sanction u/s 197 from the Central Government before prosecuting the applicants for the offence punishable under Section 504 of the Indian Penal Code - Allegation of corruption against the revenue officer - Abetting the manufacturer in evasion of duty of excise - HELD THAT - A bare reading of Section 197 lays down that, no court can take cognizance of any offence alleged to have been committed by a person who is or was a Judge, or Magistrate or a Public Servant not removable of his office save by or with the sanction of the government, while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the appropriate Union or the State Government - In order to avail the benefit of Section 197, it is required to be established that the offence mentioned therein must be committed by public servant and the public servant employed in connection with the affairs of the Union or State is not removable from his office, save by and sanction of the appropriate government. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a clock for doing the objectionable act. The object of sanction of prosecution as provided under Section 197 is to protect the public servants discharging official duties and functions from harassment by initiation of frivolous retaliatory criminal proceedings. The Apex Court in the case of D. Devraja 2020 (6) TMI 802 - SUPREME COURT , discussed the settled law relating to the requirement of sanction to entertain and/or take cognizance of an offence, allegedly committed by public servant and held that the High Court clearly erred in law in refusing to exercise its jurisdiction Under Section 482 of the Code of Criminal Procedure to set aside the order of the Magistrate impugned taking cognizance of the complaint, after having held that it was a recognized principle of law that sanction was a legal requirement which empowers the Court to take Cognizance. In light of the settled law propounded by the Apex Court and applying the same to the facts of present case, this court is of the considered opinion that, before the learned trial Court sufficient material placed by the applicants to demonstrate that the offence complained of was committed by the applicants while discharging their official duty. The documents referred by the trial Court clearly established that, the applicants were appointed by the President of India and their parent department is Revenue, Ministry of Finance - based on the power of delegation and procedure of channel of submission, time to time framed by the Union Government and considering the applicable service rules, it prima-facie, established that, at relevant time, applicants were public servants, employed by the Union, not removable from their office with the sanction of the Central Government. Reverting to the facts of the present case, the applicants had raided the mill premises for preventive checks and act of raid was the part of their official duty and therefore, during the search, the allegations as alleged in the FIR leveled by the respondent no. 2 that he was insulted with intent to provoke the peace. In such circumstances, it cannot be said that, the alleged act done by the applicants is not directly connected with the discharge of their official duty. The facts of the FIR lodged by the applicants against the private respondent in discharging the public duty and subsequent private complaint under the Excise Act, would show that the alleged offence under Section 504 and official duty are so inter-related that it would be difficult to separate them and in that view of the matter, the protection as provided under Section 197 is required to be extended to the public servants i.e. present applicants. This Court is of the considered opinion that, the findings recorded by the trial Court are without applying the principles of law correctly and to prevent the failure of justice - In view of the bar of Section 197 of the Cr.P.C, the trial Court could not have issued the process against the applicants without prior sanction of the authority and/or Union Government. Accordingly, the proceedings of the Criminal Case for the offence punishable under Section 504 of the Indian Penal Code is hereby quashed. Petition allowed.

Summary

Issues Involved:
1. Whether sanction under Section 197 of the Cr.P.C. is necessary from the Central Government before prosecuting the applicants for the offence punishable under Section 504 of the Indian Penal Code.
2. Whether the act complained of was committed by the applicants while discharging their official duty.

Summary:

Issue 1: Necessity of Sanction under Section 197 of Cr.P.C.

The primary question for consideration was whether sanction under Section 197 of the Cr.P.C. is necessary from the Central Government before prosecuting the applicants for the offence punishable under Section 504 of the Indian Penal Code. The applicants argued that they were public servants serving with the Revenue Department, Ministry of Finance, and their appointing authority was the President of India. They contended that they could not be removed without the sanction of the Central Government. The trial court and revisional court had previously rejected this argument, but the High Court found that the applicants had provided sufficient evidence to establish that they were public servants not removable from their office save by or with the sanction of the Government. The High Court concluded that the courts below were in error in holding that there was no sufficient evidence to establish that the applicants could not be removed from their service without the sanction of the government.

Issue 2: Connection of the Act with Official Duty

The second issue was whether the act complained of was committed by the applicants while discharging their official duty. The High Court noted that the applicants, being high-ranking officials of the Excise and Customs Department, conducted a raid at the mill premises for preventive checks and recovered incriminating material. The private respondent lodged an FIR alleging intentional insult under Section 504 of the IPC. The High Court found that the act complained of was directly or reasonably connected with the official duties of the raid conducted by the applicants. The court held that the alleged offence under Section 504 and the official duty were so inter-related that it would be difficult to separate them. Therefore, the protection under Section 197 of the Cr.P.C. was required to be extended to the public servants.

Conclusion:

For the foregoing reasons, the High Court quashed the orders passed by the trial court and revisional court, holding that the findings were patently erroneous and perverse. The application Exh. 62 filed in Criminal Case No. 371 of 2010 was allowed, and the proceedings for the offence under Section 504 of the IPC were quashed due to the bar of Section 197 of the Cr.P.C. The court clarified that it would be open for the private respondent to file fresh proceedings by following the procedure prescribed by law.