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TMI Blog2022 (4) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 interp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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. - Criminal Petition No.3978 of 2016 - - - Dated:- 6-4-2022 - Hon ble Dr. Justice G. Radha Rani For the Petitioner : Mr. Srinivas Rao B. For the Respondent : Public Prosecutor Mr. Vivek Jain ORDER: This petition is filed by the petitioners-A2 and A3 under Section 482 Cr.P.C. to quash the proceedings in CC No.57 of 2016 on the file of XII Additional Chief Metropolitan Magistrate, Hyderabad. 2. The case of the petitioners was that the 1st petitioner was an Intelligence Officer and the 2nd petitioner was a Senior Intelligence Officer of the Directorate of the Revenue Intelligence (DRI), Hyderabad R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for all the five Boards, though he actually remitted more than above invoice value to the actual suppliers. The email correspondence between the 2nd respondent and the alleged suppliers recovered during the searches would show that the 2nd respondent procured the same in the name of Sigma at a much higher price and caused loss to the Government exchequer. The above documentary evidence collected made it clear that the 2nd respondent remitted US$ 76,500/- from his ICICI Bank Singapore account, US$ 98,000/- from North Fork Bank, New York and paid US$ 1,41,000/- from the account of M/s.Ariel Technologies, New York to the supplier of LED Boards. Evidence also indicated that in addition to the above, the 2nd respondent remitted an amount of US$ 1,27,500/- through his friend Mr. Badruddin Syed Hyder in Dubai. As per the email correspondence between the 2nd respondent and the supplier in Hong Kong, the 2nd respondent had to pay balance of US$ 2,08,000/- totalling to US$ 6,52,000/- against a value of US$ 81,000/- declared to the Indian Customs for assessment and thereby evaded customs duty. The other documents recovered would show that the 2nd respondent imported spares removed from the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having an Officer working in Hong Kong for Customs Department of India known as Customs Overseas Intelligence Network (COIN) specifically to cross-verify the information. 7. The said complaint was referred to the police for investigation under Section 156 (3) Cr.P.C. Basing on it, the Sub-Inspector of Police of Central Zone, CCS, DD, Hyderabad registered a case in Crime No.12 of 2009 under Sections 120-B, 166, 212,220, 468, 469 471 IPC against A1 to A3. During the course of investigation, the Investigating Officer addressed letters to the Registrar of Companies and collected details of Management of FAL and also addressed letters to Directorate of Revenue Intelligence and collected records i.e. copy of DRI authorization to search at the premises of FAL dated 28.12.2007, copy of the letters addressed by A2 to ADG, Chennai, copy of letter of ADG, Chennai authorizing the arrest of the complainant. After collecting the documents including the alleged forged invoices seized at the premises of FAL by the petitioners and after recording statements of the witnesses, a letter of request / Letter of Rogatory (LR) was forwarded through the court to the court in Hong Kong by framing a que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of U.P. and others AIR 1997 SC 2102 , State of H.P. v. M.P. Gupta 2004 (2) SCC 349 and State of Kerala v. V. Padmanabhan Nair AIR 1999 SC 2405 . It was also mentioned that the petitioners had removed the webcams valued about ₹ 5,000/- from the premises of FAL during their search operations and did not bring it on record and failed to return the same to the 2nd respondent or FAL and committed offence punishable under Section 380 IPC. The said charge sheet filed by the Inspector of Police, SIT, CCS, Hyderabad was taken on file under Sections 468, 469, 471, 341, 343 read with 34, 109, 120-B IPC and 7 (1) of the Criminal Law Amendment Act by the Additional Chief Metropolitan Magistrate, Hyderabad and summons were issued to A1 to A3. 9. Challenging the issuance of summons to them, the petitioners A2 and A3 filed this petition contending that sanction for prosecution was mandatory as they were employees of Central Government and the absence of the same would vitiate the whole proceedings. They further contended that admittedly, there were serious disputes between A1 and the 2nd respondent, who were brothers and civil and criminal cases were pending between them. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doing its duty and prayed to quash the proceedings in CC No.57 of 2016. 10. Heard Sri Adi Narayan Rao, learned Senior Counsel for the petitioners and Sri B. Kumar, learned Senior Counsel for the 2nd respondent and the learned Public Prosecutor for the 1st respondent. 11. Both the learned Senior Counsel representing the petitioners and the 2nd respondent filed written arguments besides submitting their oral arguments and relied upon several judgments on each side. 12. Learned Senior Counsel for the petitioners submitted that continuing the prosecution against the petitioners was nothing but running a parallel case to the proceedings under the Central enactments, which was not permissible and would constitute abuse of process of law and would adversely affect not only the petitioners who were government servants but would strangulate the very functioning of all the officers enforcing the law. The petitioners, being Government Servants (Officers of Customs) were protected by Section 155 of the Customs Act, 1962. The prosecution on allegations related to search and seizure were official acts, as such sanction of the Government was necessary under Section 197 of Cr.P.C. for pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and letters of Rogatory by which the officials of Benson International were examined before the Criminal Courts in Hong Kong and their statements were recorded and forwarded to the Court, came to know that the said two invoices recovered from the office premises of FAL, Hyderabad were not genuine and were not issued by them. The petitioners did not verify the genuineness of the documents even though prosecution had shown that there was an organization called Customs Oversees Intelligence Network in Hong Kong for verifying such documents. The petitioners deliberately had not done as they knew that they were forged documents. It might not be justified in appreciating the evidence gathered by the police in a petition under Section 482 Cr.P.C. and prayed to dismiss the petition. 14. In the light of the factual aspects and the rival contentions raised by both the learned Senior Counsel, the points that arise for determination in this petition are: (1) Whether there is necessity to obtain sanction to prosecute the petitioners under Section 197 Cr.P.C.? (2) Whether the petitioners were entitled to protection under Section 155 of the Customs Act? (3) Whether the proceedings i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of customs. (2) Without prejudice to the provisions of sub-section (1), Board may authorise a Chief Commissioner of Customs or a Joint or Assistant or Deputy Commissioner of Customs to appoint officers of customs below the rank of Assistant Commissioner of Customs. 17. Learned Senior Counsel for the petitioners, on the other hand, filed Notification No.31/97-Cus.(N.T.), dated 7th July 1997, wherein it was notified that: In exercise of powers conferred by sub-section (1) of Section 4 of the Customs Act, 1962 (52 of 1962) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No.38/63- Customs, dated 1st February, 1963, the Central Government hereby appoints the following persons to be the Officers of Customs, namely :- 1. Appraisers, Examiners, Superintendent Customs (Preventive), Preventive Officers Women Searchers, Ministerial Officers and Class IV Officers in the Customs Department in any place in India. 2. Superintendents, Inspectors, Women Searchers, Ministerial staff and Class IV staff of Central Excise Department, who are for the time being posted to a Customs port, Customs airport, Land-Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the public servant's act is in furtherance of the performance of his official duties. If the act/omission is integral to performance of public duty, the public servant is entitled to the protection under Section 197 (1) of Cr, P, C, without previous sanction, the complaint/charge against him for alleged offence cannot be proceeded with in the trial, The sanction of the appropriate Government or competent authority would be necessary to protect a public servant from needless harassment or prosecution. The protection of sanction is an assurance to an honest- and sincere officer to perform his public duty honestly and to the best of his ability. The threat of persecution demoralizes the honest officer. The requirement of sanction by competent authority of appropriate Government is an assurance and protection to the honest officer who does his official duty to further public interest However, performance of Official duty Under colour of public authority cannot be camouflaged to commit crime. Public duty may provide him an opportunity to commit crime. The Court to proceed further in the trial or the enquiry, as the case may be, applies its mind and records finding that the crime an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, no bar.'' 20.2. Learned counsel for the 2nd respondent relied on the judgment of the Hon ble Apex Court in P.K. Prathan v. State of Sikkim, rep. by CBI 2001 (6) SCC 704 , wherein it was held that: 5. The legislative mandate engrafted in sub section (1) of Section 197 debarring a court from taking cognizance of an offence except with the previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from office save by or with the sanction of the Government touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking cognizance. Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in Section 197 of the Code; any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The offence alleged to have been committed must have something to do, or must be related in some manner, with the disch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 18 of 2012 by the Special Judge, Anti Corruption (CBI), Ghaziabad, U.P. in absence of previous sanction obtained from the Central Government to prosecute the appellants as required under Section 197 of CrPC. The appeals are allowed. 20.4. He further relied on the decision of the Hon ble Apex Court in State of Orissa v. Ganesh Chandra Jew (2004) 8 SCC 40 , wherein the Hon ble Apex Court laid down that the protection under Section 197 Cr.P.C. would be available only when the act done by the public servant is reasonably connected with the discharge of his official duty. It was held that: 7. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the Section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits which would have to be investigated 'at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution. 21. The learned counsel for the petitioners on the other hand relied upon the judgments of the Hon ble Apex Court in Punjab Warehousing Corporation v. Bhushan Chander and another (2016) 13 SCC 44 and Amal Kumar Jha v. State of Chhattisgarh and another , wherein it was held that: As regards the invocation of Section 197 Cr.P.C., a survey of the precedents makes it absolutely clear that there has to be a reasonable connection between the alleged omission or commission and the discharge of the official duty or the act committed was under the colour of the office held by the official concerned. If the act(s), omission or commission of which is totally alien to the discharge of the official duty, question of invoking Section 197 Cr.P.C. does not arise. The act concerned must bear a relation to the dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of government sanction for initiation of criminal action against him. 69. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority. 70. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the petitioners contended that the petitioners were entitled for protection under Section 155 of the Customs Act 1962, whereas the learned counsel for the 2nd respondent contended that Section 155 would apply only if the Customs Officers were prosecuted for the offences under the Customs Act but it had no application when they were being prosecuted for the offences under IPC and that too only if the act was done by them in good faith. 27. In view of the rival contentions raised by both the counsel, it is considered appropriate to extract Section 155 of the Customs Act 1962. It reads as follows: 155. Protection of action taken under the Act.- (1) No suit, prosecution or other legal proceedings shall lie against 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 this Act or the rules or regulations. (2) No proceeding other than a suit shall be commenced against the Central Government or any officer of the Government or a local authority for anything purporting to be done in pursuance of this Act without giving the Central Government or such officer a month s p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scrutiny of Section 155 of the Customs Act and different words employed by the legislators in Sub Sections (1) and (2) of the Section 155 will clearly show that the submission made by the respondents and accepted by the trial Court, is totally erroneous. It is untenable to say that any person who is employed in the Government or local authority cannot be prosecuted for his misdeed, without putting him on one month notice and can proceed not after lapse of three months. The Court below has failed to note that when protection is given to Government servant for from prosecution under Sub Section (1) of Section 155, the word prosecution is consciously not mentioned in Sub Section (2). Also the words other legal proceedings is Conspicuously absent in http://www.judis.nic.in Sub Section (2). The word employed in Sub Section (2) is only proceedings and not other legal proceedings. 15.The statute says that no proceeding other than a suit can be initiated without previous notice with one month time and not after expiration of three months from the accrual of such cause. Thus on applying the principle of golden Rule of interpretation, the word proceedings should be given only limited and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that: Power under Section 482 cannot be exercised where prima facie case stands established and allegations are required to be proved in court of law. 33. In D. Devaraja s case (2020) 7 SCC 695 supra), relied on by the learned counsel for the petitioners, the Hon ble Apex held that: 74. It is well settled that an application under Section 482 of the Criminal Procedure Code is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of court. If, on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, where the criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power under Section 482 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of court. 34. 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 compet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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