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TMI Blog2008 (8) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... ks whose proprietor is the son of the respondent No. 2. The officials went to the premises at 5 p.m. on 24.10.1994. In the same business premises, the documents and business stocks relating to Kasanagottu Srisailam and Bros. were also noticed. During the inspection, the son of the respondent No. 2 along with one Sri. Kasanagottu Satyanarayana said to be one of the partners of Sri Kasanagottu Srisailam and Bros. were available. A statement of inspection was recorded. The statement was recorded by the appellant on a request of the son of the respondent No. 2 on his business letter pad. The statement was written by the son of the respondent No. 2 on his own, wherein he duly declared that the shop has been inspected that day at 5.30 p.m. and that till the date of such inspection i.e. 24.10.1994, he had not written any of the books of accounts relating to his business and that he did not even give the returns for the year 1993-94 and also that he did not issue any sale bills. As far as the stocks and documents relating to M/s. Kasanagottu Srisailam and Bros., Mr. Kasanagottu Satyanarayana stated that he was one of the partners and he gave a statement on his letter head in his own hand w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the police filed a final report on 18.9.1995 that the complaint itself is a false complaint. However, the police report was objected to by the complainant as wrong and incorrect and that it is without any proper investigation. It appears that without giving any reasons whatsoever and without recording any defect in the final report of the police and without any sufficient additional materials, the said objection was taken into cognizance and the Magistrate has issued notice and process to the appellant and his subordinate in CC No. 356/1996 and the officials were asked to appear before the Court for trial of offences under Section 448, 380, 384 and 506 IPC. The appellant had appeared from time to time before the learned Magistrate and it was pointed out that the said complaint itself is false and in any case process ought not to have been issued since there was specific bar contained under Section 37 of the Andhra Pradesh General Sales Tax Act, 1957 (in short `the Act') read with Section 197 of the Cr.P.C. The appellant herein along with the other officials preferred a petition before the learned Magistrate under Section 37 of the Act read with Section 197 Cr.P.C. with a praye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re done in discharge of official duty or in dereliction of duties for quashing the proceedings at the initial stage unless the complainant is given opportunity to establish his case. The petition was resisted by the respondent before the High Court on the ground that Section 37 cannot come to the aid of the appellant as the alleged acts had nothing to do with discharge of official duty. With reference to Sub-sections (3) and (4) of Section 28 it was observed by the High Court that the acts complained of are not encompassed by the said provision to give any protection to the appellant. Accordingly, as noted above, the petition was dismissed. 4. In support of the appeal, learned Counsel for the appellant submitted that the scope and ambit of Sections 27, 28 and 37 of the Act as well as Section 197 Cr.P.C. have not been kept in view. It was submitted that the proceedings were nothing but abuse of the process of law and, therefore, the High Court should have interfered in the matter. Learned Counsel for respondent No. 2 submitted that he has no instructions in the matter and does not want to have any say. 5. In order to appreciate the submissions of the appellant it is necessary to tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble times, any officer, shop, godown, vessel, vehicle or any other place of business or any building or place where such officer has reason to believe that the dealer keeps or is, for the time bring, keeping any goods, accounts, registers or other documents of his business. Provided that no residential accommodation not bring a shop-cum- residence shall be entered into and searched by any officer below the rank of Deputy Commissioner except on the authority of an order issued by any officer not below the rank of a Deputy Commissioner having jurisdiction over the area; or an officer not below the rank of Deputy Commissioner of Commercial Taxes Department working in Vigilance and Enforcement Department having jurisdiction over the entire State of Andhra Pradesh. And all searches under this sub-section shall so far as may be, made in accordance with the provisions of the Code of Criminal Procedure, 1973 subject to the rules, if any, made in this behalf. (5) The power conferred by Sub-section (4) shall include the power to break open and box or receptacle in which any goods accounts, registers or other documents of the dealer may be contained, or to break open the door of any premises, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umar Mishra v. State of Bihar and Ors. 2006 CriLJ808 it was observed as follows: 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 prosecution. This protection has certain limits and 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 cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroversial allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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