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TMI Blog1996 (4) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... perusal of the records, books of account, the complaint/company was asked to pay an ad hoc amount of Rs. 25 lakhs, towards the evasion of excise duty. But the Managing Director, who appeared before the department pleaded that the company had not evaded any payment of excise duty, and as such no amount could be paid. Then, the Managing Director of the company was arrested and sent for remand to the Court. 4.On 31-8-1994, the petitioner/accused, Customs Collector convened a press conference at his office and released a news items, containing the defamatory allegation and damaging the reputation of the complainant's company, which was published in the daily newspapers. The publication made in the newspaper is as follows :- "Mr. Ranjit Pradap, Managing Director of Renowned Auto Products Manufacturers Ltd. had been arrested in the morning for evading Central Excise Duty of around Rs. 20 lakhs. The Company engaged in the manufacture of shock absorbers had manipulated invoices and credit notes and evaded excise." 5.Since the above press publication was released by the accused to the reporters, the complainant Renowned Auto Products Manufacturers Ltd., through its General Manager Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o dismiss the revision. He further contended that since the Magistrate has not given any finding with regard to the question of sanction, the proceedings must be allowed to go on, to enable him to consider the question, after taking the evidence in the trial. 11.I have heard the rival submissions made by the respective parties, and perused the records viz. complaint, typesets filed by both the parties. 12.Section 197 Cr.P.C., provides that no Court shall take cognizance of any offence against any person who is a public servant not removable from his office, save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him, while acting or purporting to act in the discharge of his official duty, except with the previous sanction. There is no dispute regarding the fact that the petitioner/accused was a public servant, while this act had been committed. But the question now raised is whether it could be said that an offence under Section 500 I.P.C., has been committed, while acting or purporting to act in the discharge of his official duty. 13.Before delving deep into this question, let me analyse the submissions made by the respecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 40 of the Central Excises and Salt Act, 1944, the accused can invoke the protection, only if the act is done in good faith and in pursuance of the Act made under the Rules thereof. In this case, since the accused is not entitled for immunity from prosecution in terms of Section 40 of the Central Excise Act, he cannot also seek protection under Section 197 Cr.P.C. The conduct of the accused in calling for a press conference at Hosur on 31-8-1994 and making a public statement, declaring that the complainant company had manipulated invoices and credit notes and evaded payment of Excise Duty to the tune of Rs. 20 lakhs and causing the matter widely published in several leading newspapers is not an act done in pursuance of any duty under Central Excise Act or Rules made thereunder, whereas it is an indirect violation of Section 9B and Rule 232A of the Central Excise Act, 1944. 15.Under Section 9B of the Act, where any person is convicted under the Central Excise Act, it shall be competent for the Court convicting the person to cause the publication of the name and place of business or residence of such person, nature of the contravention. Even this publication should be ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set, I must say that under Section 197 Cr. P.C., the Magistrate has to look into the records, whether he is entitled to take cognizance of the offence, especially when the complaint is made by a party against the petitions a public servant, viz. Collector of Customs. The Apex Court and this Court as well, on several occasions held that especially when the contents of the complaint disclosed that the act of the accused was done while he was a public servant, the Magistrate is duty bound to decide the question, whether he is entitled to take cognizance, despite the bar under Section 197 Cr. P.C. 20.It is relevant to note that nothing has been mentioned in the complaint or in the sworn statement that the accused has made a publication not in the discharge of the official duty and so the sanction was not necessary. In the absence of those allegations, the learned Magistrate ought to have applied his mind, before taking cognizance. If he has properly applied his mind, even at the stage of cognizance the Magistrate would have definitely asked for the explanation from the complainant with regard to the question of sanction under Section 197 Cr. P.C., which actually bars the Magistrate f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , even in some decisions cited by learned Counsel for the respondent, the Supreme Court has observed that the sanction point could be decided at the earliest stage. So, the Magistrate has committed wrong in deferring the question of consideration of the necessity of sanction at the stage of post-trial. As such, I feel the order passed by the learned Magistrate is not valid in law and is liable to be set aside. 25.In Ramnath Goenka v. A.R. Raji (1982 Crl. L.J. 1153), M.N. Moorthy, J. of this court, on similar facts considered, when a complaint against Principal Information Officer, Government of India, was filed under Section 500 I.P.C., the question of sanction under Section 197 Cr. P.C., even at the initial stage. The relevant portion of the observation is as follows :- "Where a complaint against Principal Information Officer, Government of India for an offence under Section 500 I.P.C., alleging that the "hand outs" issued by him to the complainant, a newspaper magnate are only defamatory statements with intent to lower his estimation in the eye of general public and with malice aforethought, the previous sanction of Central Government under Section 197 Cr.P.C., is necessary f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonably claim, that what he does, he does in virtue of his office". 28.In Sarjoo Prasad v. Emperor (1946 M.W.N. 19), a Federal Court, has made the following observations:- "The materials with reference to which the applicability of Sec. 270(1) must be considered were indicated in the Judgment of this Court in Hori Ram Singh v. The Crown (1939 M.W.N. 497). It was pointed out by Sulaiman, J. that as the prohibition was against the institution itself the applicability of the sanction must be judged at the earliest stage of institution. The learned Judge then proceeded to say `if the prosecution case as disclosed by the complaint or police report, as the case may be, shows that the act purported to be done in execution of duty, the proceedings must be dropped." 29.In T.G. Nichodemus v. State (1954 M.W.N. 185), it has been held as follows : "An accused person has a right to raise a preliminary objection to the maintainability of the complaint and to have it decided so that he may not be put to the necessity of undergoing a trial in case he succeeds on the preliminary objection. Where the complaint was that the offences under Sections 343, 348 and 330 IPC were committed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The larger interest of efficiency of State Administration demands that public servants should be free to perform their official duty fearlessly and undeterred by apprehension of their possible prosecution at the instance of private parties to whom annoyance or injury may have been caused by their legitimate acts done in the discharge of their official duty. This section is designed to facilitate an effective and unhampered performance of their official duty by public servants by providing for scrutiny into the allegations of commission of offence by them by their superior authorities and prior sanction for their prosecution as a condition precedent to the cognizance of the case against them by the courts. It is neither to be too narrowly construed nor too widely. Too narrow and pedantic construction may render it otiose for it is no part of an official duty—and never can be—to commit an offence. In our view, it is not the "duty" which requires examination so much as the "act" because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. I agree that want of sanction under Section 197 Cr. P.C., is a prohibition against inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication, which are as follows :- Notification dated 18-5-1984 :(i) "The existing arrangements for giving publicity to anti-smuglling measures have been reviewed by the department. Though several major seizures have been made by the Collectorates in the recent past, it had been found that news about these seizures do not get sufficient publicity in the national dailies nor broadcast in the All India Radio/Doordarshan bulletins. Generally such seizures get reported only in certain local newspapers. As no press release as such is issued by the Collectorates most of the national news agencies like PTI/UNI and Samachar, etc. are also not in a position to disseminate the news about such important seizures. Even when news items on major seizures are published in the national dailies it is in the nature of some disjointed happenings. In that context the AIR and Doordarshan have observed that the departmental authorities do not pass on such important news to their representatives in time. As a result of all these, the activities of the department do not get sufficiently projected in any of the media. As you are aware, the main purpose behind giving publicity to seizures is not so mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in view of the sensitive nature of the work, it should invariably be handled by the Collectors personally so that in major cases vital details are not disclosed prematurely to the Press/other medias of publicity." 35.Though no dispute has been raised on the genuineness of these documents, learned Counsel for the respondent contended that even according to the notifications referred to above, no name of the person should be mentioned in the press publication. But one thing is clear, the act of press publication by the Collector is permitted under these documents, the genuineness of which are not challenged before this Court. In the light of this, I feel, that there are materials available to consider, the question as to whether the sanction is necessary under Section 197 Cr.P.C. in this case. 36.Rule 232A of the Central Excise Act, as referred to by the Senior Counsel, appearing for the respondent, could be applicable, only for the Gazette notification, after conviction or after the penalty imposed. That would not be applicable to this case, because as per the notifications referred to above, even at the investigation stage, the Collectors of Customs are entitled to make a pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it briefly, it is the quality of the act that is important, and if it falls within the scope of the afore-quoted words, the protection of Section 197 will have to be extended to the concerned public servant. This decision, therefore, points out what approach the Court should adopt while construing Section 197(1) of the Code and its application to the facts of the case on hand". These principles have been laid down by the Apex Court, while dealing with the question as to whether under Section 197 Cr. P.C., the sanction for prosecution is required or not against Minister for Electricity, State of Kerala, for having allegedly committed the offence of criminal conspiracy in selling electricity to an industry in the State of Karnataka, without the consent of the Government of Kerala. The Supreme Court further held that since the act was committed, which was directly and reasonably connection with his official duty as Minister, that would attract the protection under Section 197 Cr. P.C. 38.I feel that this case is squarely applicable to the facts of the present case. As referred to earlier, the notifications give the details of the guidelines to the Collectors of Customs and impress ..... 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