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TMI Blog2022 (11) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... tual matrix. The petition under consideration is devoid of merit and is dismissed, however, without cost. - CRR 2326 of 2001 - - - Dated:- 14-11-2022 - THE HON BLE JUSTICE SIDDHARTHA ROY CHOWDHURY For the Petitioners : Mr. Debasish Roy, Sr. Adv. Mr. Apalak Basu, Adv. Mr. Dipak Dey, Adv. Mr. Dipanjan Dey, Adv. Ms. Shreyashi Manna, Adv For the Opposite Party : Mr. Vipul Kundalia, Adv. Mr. Anirban Mitra, Adv. Mr. Anurag Ray, Adv ORDER Siddhartha Roy Chowdhury, J. 1. Challenge in this revisional application is to the legality and maintainability of the proceeding being Complaint Case No. C/888/91 pending before the learned 12th Court of Metropolitan Magistrate, Calcutta under Section 120B/420/467/468/471 of the Indian Penal Code. 2. Depicting themselves as the proprietress of the M/s P.K. Himatsingka Company and the Chief Executive Officer of the said Company respectively, the petitioners contended that Project Equipment Corporation issued a letter of authority in favour of M/s P.K. Himatsingka Company for importation of goods on the price approved by Project Equipment Corporation as per list attached to the license issued by Chief Controller o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring agent appointed by M/s P.K. Himatsingka Company on the basis of required documents and goods were dispatched to New Delhi and delivered by agents of M/s P.K. Himatsingka Company on payment of transportation charge. However, it was alleged in the petition of complaint that the goods imported were not as per attested list of the goods appended to the Import license to P.E.C. Importation of goods beyond the attested list was made on the basis of forged and fabricated documents under the forged signature of K.A.S. Tomar, Deputy Marketing Manager, P.E.C. and E.C. Nambudiri, Controller of Imports and Exports. Goods were imported without valid license in violation of the terms and conditions of the license which is punishable under Section 5 of the Imports and Exports (Control) Act and also for violation of Section 132/135 of the Customs Act. It is alleged that the accused persons cheated the customs authority. Necessary sanction of the Collector of Customs for prosecution of the accused persons have been obtained and filed with the petition of complaint. Subsequently at the behest of the complainant the proper procedure for disposal of the complaint was adopted. 6. Challengi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erent from sanction for taking cognizance. Sanction accorded by the Collector of Customs for the prosecution of the petitioner, cannot be regarded as sanction for taking cognizance by the Court under Section 197 of the Cr.P.C. To buttress his argument Mr. Roy relied upon the decision of Hon ble Supreme Court pronounced in the case of S.N. BHOWMIK VS. THE STATE reported in 1988 (II) CHN 455 wherein it was held by the Co-ordinate Bench:- The learned Advocate for the petitioner further argues that there is a good deal of difference between a sanction for taking cognizance and a sanction for prosecution as pointed out by the Supreme Court in the case of Ram Kumar v. State of Haryana AIR 1987 SC 735. Their Lordships have held in unmistakable terms that sanction for prosecution is quite different from sanction for taking cognizance and the one cannot be a substitute for the other. In view of this legal position it must be held that the sanction accorded by the Collector of Customs for the prosecution of the petitioner cannot be regarded as a sanction for taking cognizance by the Court. It is no doubt true that in the sanction, Ext. 1, the sanctioning authority has stated that he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with maintenance of the public order are provided with two safeguards when such member is sought to be prosecuted for use of excessive force in the discharge or purported discharge of their duty. They cannot be prosecuted without obtaining a sanction to prosecute from the appropriate government in terms of Section 132 of the Code of Criminal Procedure and no Court can take cognizance of offence against such official in absence of the previous sanction of the appropriate government under Section 197 of the Criminal Procedure Code. But the said safeguard is not available to the petitioners. Mr. Kundalia further contended that the judgement pronounced in the case of S.N. BHOWMIK VS. THE STATE reported in 1988 (II) CHN 455 was based on the judgement pronounced by the Hon ble Supreme Court in the case of RAM KUMAR VS. STATE OF HARYANA reported in 1987 SC 735 wherein the Hon ble Apex Court held:- 2. Two safeguards are provided in regard to prosecution of members of the Armed Forces or of the forces charged with the maintenance of public order sought to be prosecuted for use of excessive force in the discharge of purported discharge of their duty: (1) They cannot be prosecute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e visits different persons with different consequences. Absence of the former disables the intending complainant whereas absence of the latter disables the Court. (4) The disability operates in two different spheres. Want of sanction under Sec. 132 renders the complaint invalid. Want of sanction under Sec. 197 vitiates all the proceedings in the Court. For want of the former, the complainant cannot complain, for want of the latter the court cannot try the case. (5) The sanctioning authority has to address itself to different questions. In regard to a sanction under Sec. 132 Cr.P.C. the question to be answered is whether the intending complainant is a suitable person to be authorized for prosecuting the matter in good faith. In regard to the sanction under Sec. 197 the question to be answered is which particular court should be empowered to try the case'. So also in granting sanction under Sec. 197 the sanctioning authority has to consider whether or not to exercise the powers under Section 197(4) to specify the person by whom, the manner in which, and the offence or offences for which the concerned public servant should be tried and the court before which the tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. What 197, Criminal Procedure Code or 137(1) of the Customs Act provides is that for the offences contemplated under the said provisions there must be a previous sanction of the concerned authority for the Court to take cognizance. The language in which such sanction is worded is not in the least material when the Supreme Court has clearly held that there is no particular form of sanction. When the Customs Act has not specified the particular form of sanction under Section 137(1) of the Customs Act, then we are of the view that even if the Collector of Customs accords sanction for filing complaint for offences punishable under Section 132 and 135 of the Customs Act, 1962 before a competent Court of Law and when that sanction has been accorded in exercise of the powers under Section 137(i) of the Customs Act and when the sanction order clearly set out the facts in respect of which the said sanction has been accorded, then only because the expression used in the sanction order that the sanction is accorded for filing complaint, we are unable to hold that such sanction which has been issued under Section 137(1) is invalid. We are unable to hold that the Collector of Customs has to ..... 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