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TMI Blog2003 (3) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... at the relevant time and at present he is working as Member of Indian Customs and Central Excise Service Group 'A'. Petitioners No. 4 and 6 were working as Superintendent of Customs in Air Intelligence Unit and have retired in 1987 and in February, 2001 respectively. 4. On 27-11-1985 on prior information received from Air Intelligence Security Staff, the Customs Intelligence Officer on duty at Sahar Airport intercepted two Air India loaders by name Shri Balkrishnan and Shri Motiram Devram Tahsildar, who are original complainants. Balkrishnan is respondent in one Petition and he has filed one complaint. Tahsildar had also filed complaint. However, that complaint has been dismissed. Balkrishnan and Tahsildar were trying to remove some cargo in a cardboard carton from a container which had arrived in Mumbai from Singapore, after breaking open the seal. They had offered some money to the watchman in order to allow them to open cargo and take away the contents thereof. But the watchman did not oblige the loaders. The Officers of the Customs, Air Intelligence Unit with the assistance of the Security Staff of the Air India, intercepted them. They were examined in presence of Panchas. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy on the left leg there was about 4" inches above the ankle an old weal mark noticed. Similarly on the body of Balkrishnan some old contused mark was find on the left leg on the inner aspect of the knee. The learned Magistrate observed that through the accused made complaint of ill-treatment, he did not find any substance in the complaint in view of the finding of old marks stated above. Bail was however granted and it appears, it was not even opposed. However, since no bail was furnished by the respondents, they were sent to jail. Further it is pertinent to note that neither the respondents applied for being examined by Registered Medical Practitioner or Govt. Medical Officer nor did the learned Magistrate give any direction in consonance with his findings that the marks were old. The respondents were sent to jail custody on 29-11-1985 and on 2-12-1985 they went to the Jail Hospital where the Jail Medical Officer examined them and issued medical certificate. The Jail doctor however, found certain injuries which were not noticed by the Magistrate and which are not even described either as old or recent by the doctor and even age of the injuries is not stated by him. The injuries f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Magistrate recorded findings that one of the offence was triable exclusive by the Sessions Court hence all the three cases were committed to the Court of Sessions . In the Sessions Court, the Petitioners (Customs Officers) filed application for discharge to which detailed reply was filed by the respondents. Learned Sessions Judge after hearing arguments, dismissed the discharge application which order has been impugned in the present petition. 9.According to the Petitioners, who are arrainged as accused in the Sessions trial, the complaints filed against them are false and concocted. It is obvious on the face of it inasmuch as the learned Magistrate did not find any fresh injury on the body of respondents. The alleged incident had taken place on 27th and 28th November, 1985 whereas medical certificates produced are of 2-12-1985. It describes the injuries which were not noticed by the Magistrate as what Magistrate found was only single old injury mark in each case. After three days Medical Officer/Jail Doctor found injuries described above. However, the Doctor has not stated the age of any injury. If at all the injuries described were in fact found they could not be connec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmission of the Petition Application for discharge was filed long after committal of case to the Sessions Court only when the trial was likely to begin and the impugned order could have been challenged by the accused by filing revision application to the High Court. They have chosen not to challenge that order and this Petition has been filed through them by Union of India. The same is not maintainable. There is no propriety of Union of India filing the Petition. Serious injury was found on Balkrishnan and it is necessary that the Petitioners should be tried before Sessions Court. 12.In this court Mr. M.I. Sethna, learned Senior Counsel with Mr. Mehta, Mr. J.C. Satpute appeared for the Petitioners and Union of India and Shri A.P. Mundergi with Sanjog Parab appeared for the respondents. 13.Considering the factual aspects, first it is necessary to point out that the learned Magistrate did not find any substance in the complaint of ill-treatment made before him and therefore he did not refer the respondents in any medical officer or Registered Medical Practitioner for examination. According to the Criminal Manual, allegations of ill-treatment if made the prisoner's body is require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifferent parts of the body by fist blows and kicks for quite some time. The finding of one old weal mark on Gaur's body and one old contusion on Balkrishnan led the Magistrate to a factual conclusion on spot that the complaint need not be taken seriously as such complaints are made by Prisoners to the Magistrate day in and day out and he has to decide which one deserves attention and which are made in order to get out on bail or to retract the statements recorded. 15.The respondents were found to have smuggled huge gold as on today their appeals against adjudication orders imposing personal penalty on them have been dismissed. They are facing prosecution under the Customs Act and they were interested in creating obstructions in their prosecution. It also appears to be obvious that they were interested in coercing the Customs Officers so that their anti-social and anti-national activity of smuggling goes on. The first object of the respondents was to retract the confessional statements recorded by the Petitioners under section 108 of the Customs Act which are admissible in evidence against them. 16. Another aspect of the matter is that whatever old injury marks were seen by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainable inasmuch as it is filed by the Union of India. It was contended by Mr. Mundergi, learned Counsel for the respondents that Union of India has no locus standi to file such petition. Union of India cannot be said to be aggrieved party. The person aggrieved by the order of the Sessions Judge are accused in Criminal Case pending before him. Their discharge applications are rejected and each of them had a right to challenge that order before the High Court. They are claiming that prosecution against them is not maintainable in the absence of sanction in view of the Section 197 of Cr. P.C. According to them and even according to the Union of India, the Central Government/the Union of India is sanctioning authority and how can the sanctioning authority be said to be aggrieved for prosecution of some individual officer. It was his further contention that the conduct of Union of India in filing the Petition shows that respondents even if they had approached the authority for sanction, would never have been able to secure sanction. How can they expect justice from the Government, which is interested in protecting accused against whom they have filed complaint. It is therefore necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a representation and a request being made by the association, the Government should be in a position to challenge the said prosecution on the ground that it is filed without obtaining necessary order of sanction. I, therefore do not find any force in the argument of Mr. Mundergi that Union of India has no locus standi to file these petitions. I also find sufficient force in the arguments of Mr. Sethna that the Government feels aggrieved as it is bye-passed or side tracked by filing of the prosecution without approaching the Government for sanction. The argument of Mr. Mundergi is based on the hypothesis that in case, anybody approaches the Government for sanction in normal course the Government should grants sanction. In case if refuses, the concerned person may feel that the Government is supporting it's own officer. The Government has the power to examine the matter and refuse sanction in the appropriate case considering the facts of the present case pointed out earlier, if the Government was approached and it had found that complaint is false and concocted and the officers are being harassed by filing of such complaints and a case for refusal of sanction is made out it would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y because the learned Sessions Judge has made such remark in his order when even in the Sessions Court in reply to the discharge application, no such assertion was made. 24There is admittedly no compliance with the. provisions of Section 155 of the Customs Act and on that ground also the prosecution of the Petitioners is not maintainable. 25.This takes me to consider the issue of sanction. Number of Judgments have been cited by both the counsel, I would however restrict reference to few of them, I would like to point out that I had an occassion to consider this issue in a case in which facts were similar and that Judgment is reported in the matter of A.K. Sahdev and Anr. v. Ramesh Nanji Shah and Anr., Writ Petition. No. 549 of 1996, Cri., L.J. 2645, 1998. "In that case the complaint was filed against the Officers of 'Enforcement Directorate'. Respondent was involved in illegal Havala Transaction on large scale. His brother was also involved in similar transaction. Number of persons were examined in connection with the entries found in the diary of the said person which is included certain big personalities including Cine Actors. When summons was issued to the respondent and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... object of the sanction is to provide guard against vexatious proceedings against the Judges. Magistrate and Public servants and to secure the opinion of superior authority whether it is desirable that there should be a prosecution. If on the date of the complaint itself it is incumbent upon the Court to take cognizance of such offence only when there is a previous sanction then unless the sanction to prosecute is produced the Court cannot take cognizance of the offence. Naturally at that stage the court taking cognizance has to examine the acts complained of and see whether the provisions of Section 197 of Cr. P.C. are attracted. If the above two conditions are satisfied then the further enquiry would be whether the alleged offences have been committed by the public servant while acting or purporting to act in discharge of his official duties. If this requirement also is satisfied then no court shall take cognizance of such offences except with the previous sanction. For this purpose the allegations made in the complaint are very much relevant to appreciate whether the act complained of is directly concerned or reasonably connected with official duties so that if questioned the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not the legality or the serious nature of the act that takes away the protection. What is required to be seen is whether there is reasonable nexus between the act complained of and the discharge of official duty or even purported discharge of official duty. If the act is totally not connected, the case should not be covered by Section 197 of Cr. P.C. For example if a woman is arrested in connection with any offence and while in custody she complaints that she was ravished by the officer under the garb of interrogating her then the protection of section 197 IPC may not be availed of as the act of rape cannot be said to be in any way connected with the discharge or purported discharge of the official duty of interrogatory or required of shelter. The contention of the learned Counsel for the respondent is that it is not the duty of the Customs Officer in assault and man handle the respondents for the purpose of recording or while recording their statements. The arguments is misconceived. There is no question of justifying such an act. The question is whether the act complained of i.e. assault when in custody is connected with the official act. The official act is recording conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strictly necessary for discharge of the duty. As this question will arise only at a later stage when trial proceeds on the merits. What a court has to find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of official duty, though possibly in excess of the needs and requirements of the situation." 28.The facts of the present case show it was serious case in which 30 kgs. Gold was seized. It was seized on the basis of information received and it was absolutely necessary to record the statements of the accused in order to find out the persons involved in the smuggling activities and when during the course of recording such statement. The alleged assault was committed then it cannot be said that it is an act totally not connected with discharge or purported to discharge of duty. Section 197 prohibits the Court from taking cognizance of the offence if the allegations in the complaint make out a case of requirement of sanction. The court has no jurisdiction to take cognizance and in matters of jurisdiction delay is no ground. I am therefore not at all impressed by the argument that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In discharge of his official duty he had chased a speeding Contessa car driven by the deceased. In an attempt to stop the car for searching the same, he overtook the car and having disclosed his identity asked the deceased to stop the car but when the driver had attempted to flee with the car, he jumped into the same and tried to take out the ignition key in order to stop the vehicle. He was also revealed that the appellant had received various injuries including incised wounds which on the basis of medical report were likely to have been caused at the time when attempt to stop the car was made. Scuffle was between the appellant and the smuggler during the course of which big size knife carried by the smuggler was used, the smuggler died because of the injuries sustained at the hands of the appellant who himself had as many 22 injuries. The smuggler was having close connection with political leaders in the State of Goa. The matter was investigated into by the CBI and when the protection under Section 155 of the Customs Act was denied, the appellant approached the Supreme Court. It is observed in Para No. 1: "A valiant and dutiful Customs Officer risked his life to fight the mig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or acquittal. In this view of the matter we do not feel inclined to upset the impugned order, even though perhaps the matter may have required further evidence before quashing of the complaint could be held to be fully justified. The appeal is accordingly dismissed." 34.Coming to the facts and circumstances of the present case the hazardous consequences of the impugned order cannot be overlooked. Respondents were found indulging in smuggling and have been penalized for the very act for which they are being prosecuted. They have succeeded in protracting their prosecution by resorting to the tactics of filing a false and concocted complaint against the protectors of law who did dare arrest them. The practical result of the order is that their activities must have continued unobstructed for quite some time, in any case, till the suspension and removal of Mr. Gaur from services of Air India. By the time criminal cases against respondents come up for hearing. It is likely that witnesses may not be available or if available may not be in a position to depose to the facts noticed and the benefit of all this would obviously go to the respondents. As against this the honest officers h ..... 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