TaxTMI 
TaxTMI 
2006 (7) TMI 646
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....ion 197 of the Code. 2. Criminal Misc. Case No. 977 of 2005 has been filed by S/Shri Vivek Chaturvedi. D.P. Saxena and P.K. Katiyar, who were named in the F.I.R. of crime No. 14/2002 registered at police station Krishna Nagar, Lucknow in compliance of the direction of the learned Magistrate on 10-1-2002 passed on the application moved by opposite party No. 2 Shri R.K. Singh on 21-12-2001 in respect of occurrence dated 16-2-2001, whereas Criminal Misc. Case No. 978 of 2005 has been filed by S/Shri Jogindra Singh, C. Rajendran, P.K. Misra, Smt. Sanyogita Misra, Y.K. Chowdhary, A.K. Misra, Mohd. Tariq, S.K.S. Tomar, S.K. Srivastava, Raghuraj Singh, Gore Lal and Faridul Hasan, who were not named in the F.I.R. lodged in pursuance of the order passed by the learned Magistrate on 10-1-2002. 3. Common question of fact and law are involved in both the petitions, therefore, they have been heard together and are being disposed of by this common judgment. 4. This legal battle is between the officers of customs and central excise department working under the Government of India. The opposite party No. 2, R.K. Singh, who is the complainant and at whose prayer, the F.I.R. ....
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.... ring leader and Shri Sanjay Agarwal, brother of Shri Rajnish Agarwal, Rajesh Jain and Shri Naresh Jain of Dubai and Shri Vimal Kumar Jain brother of Sri Naresh Jain residing at Delhi and Shri Manoj Kumar Jain of Hydrabad were involved in this scam. Shri Rajnish Agarwal was knowingly and actively concerned with the export of chalk powder cleared from ICD Hydrabad on 3-1-2001 by misdeclaring the same as bulk drug namely Naproxen. The aforesaid consignment was being exported fraudulently to claim the customs duty exemption under DEPB Scheme. It was also found during the course of investigation that the bogus consignment was exported as per predetermined strategy and active connivance of Shri Naresh Jain and Shri Rajesh Jain who were accepting the same and were to send money meant for compensatory Hawala payments through banking channels in the guise of export proceeds. Shri Rajesh Agarwal was instrumental in procuring chalk powder from M/s. Techno Minerals and getting the same packed and labelled at M/s. Apar Pharma. Shri Rajnish Agarwal took one Shri Janak Prasad Sharma to Shri V.K. Singh (C.H.S) Customs House Agent and gave instructions to Shri Janak Prasad Sharma to sign the docum....
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..... He also attached a blank signed paper for the use of DRI as per their design. He denies any summons or notice for 14-2-2001. However, according to him in the morning of 16-2-2001 at about 6.30 a.m. the entire DRI staff of regional unit Lucknow with two officers of DRI New Delhi, namely, D.P. Saxena and P.K. Katiyar (Petitioners 2 and 3) came to his residence, took him out of house saying that he was to go to local office of DRI Lucknow only buy by force and deceitful means took him to Delhi via Aligarh where a sum of Rs. 4,00/- was snatched from his pocket by Shri P.K. Katiyar for filling the fuel in the vehicle, wherein he was being carried away to DRI office Delhi and reached there at about 6.30 p.m. He was then served with summons for inquiry/investigation. 9. It is alleged by the complainant, opposite party No. 2 that at Delhi he was given mental torture and inhuman treatment by DRI officers of New Delhi, who managed a dictated statement from him. He was produced before the Additional Chief Metropolitan Magistrate, Delhi next day i.e. 17-2-2001 wherefrom he was sent to the judicial custody with a direction to produce him at Hyderabad Court. Thereafter he was produced ....
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....12-2-2003. 12. Notice may also be taken of the fact that opposite party No. 2 Shri R.K. Singh (complainant) alongwith 15 others was given a notice under the provisions of Customs Act, 1962 by Commissioner, Customs and Central Excise, Hyderabad and he (the opposite party No. 2 Shri R.K. Singh) was fined Rs. Twenty lacs under Section 114(1) of the said Act. He filed an appeal against the said order, which is pending. Shri R.K. Singh, opposite party No. 2 was also detained under COFEPOSA by Andhra Pradhesh Government but his detention was not approved by the Advisory Board. Therefore, he was released from the custody on 15/17-6-2001. In the representation made by him he admitted his visit to Mumbai on the said date but maintained that it was for his personal work and denied the allegation that he had gone there for facilitating the exportation of misdeclared goods. He was also prosecuted under Section 135 of the Customs Act, but was discharged by the trial Court on 25-11-2004. However, a Revision Petition No. 26 of 2005 filed by Deputy Commissioner (Legal) Customs and Central Excise, Hyderabad-II against the said discharge order, has been allowed on 9-1-2006. Now the opposite ....
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.... Section 196 Cr. P.C. or not at the stage of summoning the petitioners, shall pass suitable orders expeditiously, say, within a period of ten days from the date of appearance of learned counsel for the petitioners. List/put of this case before the Court below on 25-1-2005. It is also provided that the application which has been moved by learned counsel for opposite party No. 2 under Section 340 Cr. P.C. may be moved by him before the Court concerned who shall also take the said application into consideration and dispose of the same within the above said period. In view of what has been stated above, both the above petitions stand finally disposed of." 15. It transpires from the above order that during the pendency of the said petitions an application under Section 340 of the Code was moved before this Court, for prosecuting the petitioners for fabricating a false document of refusal of sanction for prosecution under Section 197 of the Code. Without taking any cognizance of that application a direction was given to opposite party No. 2 to move the same before the learned Magistrate. The copy of letter which is said to be forged and false is annexed as Annexure-4 to ....
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....ry counter affidavit, the opposite party No. 2 Shri R.K. Singh states as under :- "Now the second application under Section 482 Cr. P.C. on the facts is not maintainable and permissible. Since, under disguise it seeks to review or recall the earlier final order dated 18-1-2005 of this Hon'ble High Court and it is barred by Section 362." 21. In my opinion, this argument is totally misconceived. Petitioners had filed the earlier two petitions challenging the summoning order dated 15-3-2003 on various grounds and one of them was that they being public servants, the Magistrate could not take cognizance of any offence against them committed in discharge of official duty or purported exercise of official duty without sanction of the competent government as provided under Section 197 of the Code. 22. Order of this Court passed in these two petitions shows that this Court recorded the arguments of the parties and lastly observed that from the order of the learned Magistrate not a whisper comes out that he applied his mind with respect to the effect that before proceeding against the petitioners sanction was required or not as submitted by the Investigating officer himsel....
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.... by the CJM, the High Court once again declined to decide the petition on merits, but left it to be raised before the trial Court at the time of framing the charge. Raising the very same objections at the time of framing the charge would practically be an empty formality as the trial Court had already taken a definite view in the matter. The High Court in Kissing the impugned order has virtually ignored the spirit behind the direction given and observations made in the earlier order. There is no hard and fast rule that the objection as to cognizability of offence and maintainability of the complaint should be allowed to be raised only at the time of framing the charge. Such was not the intention of the High Court in passing the order dated 15-5-1996. In any case, we have the authority of the judgment of this Court in the case of Ashok Chaturvedi v. Shiual H. Chasnchani - (1998) 7 SCC 698 to hold that the determination of the question as regards the propriety of the order of the Magistrate taking cognizance and issuing process need not necessarily wait till the stage of framing the charge. G.B. Pattanaik J. speaking for the Court observed thus : SCC PP. 700-01, para 5). "This arg....
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....essary harassment to the accused should be avoided and no body should be allowed to make abuse of the process of law. In support of this contention, the learned counsel referred to the case of Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque - (2005) 1 SCC 122 in para 8 and 9 of which the scope of the inherent jurisdiction of the High Court under Section 482 of the Code and the grounds on which it should be exorcised have been elucidated as follows :- "Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court; it only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Co....
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....on; (ii) Where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge." 31. In State of Haryana and Others v. Bhajan Lal and Others - 1992 Supp (1) SCC 335, the Hon'ble Apex Court while dealing with the question of jurisdiction of the High Court under Section 482 has enumerated the following categories of cases where this power can be exercised. To quote the words of the Hon'ble Supreme Court, "the following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482 Cr. P.C. can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, 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 ....
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....d counsel for the opposite party No. 2 has referred to the case of State of M.P. v. Awadh Kishore Gupta and Others - (2004) 1 SCC 691 where the Hon'ble Apex Court has stated the reason behind grant of inherent powers to High Court as under :- "No legislative enactment dealing with procedure can provide for all cases that may possibly arise, Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in Section 482 Cr. P.C. which merely recognizes and preserves inherent powers of the High Courts. All Courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a persons anything it gives him that without which it cannot exist)." 34. The principle of law as laid down by the Hon'ble Supreme Court in the aforesaid cases clearly show....
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....s Act, 1962. He was also prosecuted under Section 135 of the Act and the trial is still pending after remand from the revisional Court. The allegation against him as appear from the statement of Shri Vimal Kumar Jain is that he had tried to help him in the matter of export of chalk powder in the guise of naproxen, which was detained at Nhava Sheva, Mumbai port and he had enjoyed the hospitality including the air tickets from Delhi to Bombay and back and other incidental expenses including the stay in hotel of the party concerned. However, the opposite party No. 2 after being released from the custody on 3-3-2001, had sufficient time to report the matter to the police and in any case immediately after 17-6-2001 when he was again released from detention under COFEPOSA but he moved the application to the learned Magistrate on 21-12-2001 after inordinate delay. 37. In Thulia Kali v. The State of Tamil Nadu - (1972) 3 SCC 393, The Hon'ble Supreme Court held that delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets bereft of the advantage of spontaneity, danger creeps in of introduction of....
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....d to prove the conspiracy or participation of the accused not named in the FIR. 40. There is no allegation that the other accused, who participated and who are not named in the FIR were not known to complainant/opposite party No. 2 and the reasons for not mentioning their names were not at all disclosed at any stage. They were not subjected to any identification test nor there is any material at all to show that they in any way conspired with the other accused petitioners of criminal Misc. Case No. 977 of 2005. 41. In Esher Singh v. State of A.P. - (2004) 11 Supreme Court Cases 585, the Hon'ble Apex Court held in paras 34 to 37 as follows :- "34. Section 120B IPC is the provision which provides for punishment for criminal conspiracy. The definition of "criminal conspiracy" given in Section 120A reads as follows : "120A. When two or more persons agree to do, or cause to be done, - (I) an illegal act, or (II) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy : Provided that no agreement except an agreement to commit an offence shall amount to a cr....
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.... conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. 36. In Halsbury's Laws of England (vide 4th Edn., Vol. 11, p. 44, para 58), the English law as to conspiracy has been stated thus : "58. Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment for which is imprisonment or fine or both in the discretion of the Court. The essence of the offence of conspiracy is the fact of combination ....
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.... urged that in the log book, the name of opposite party No. 2 was not shown. This is indicative of conspiracy. In the log book, there are certain columns prescribed, which are filled in by the driver and counter signed by the officer having control over the vehicle . There is no column for mentioning the names of al those who travelled in the vehicle., So, this argument is also bereft of any substance. 46. There is another allegation that while taking the opposite party No. 2 to Delhi enroute near Aligarh, Shri P.K. Katiyar snatched Rs. 400/- from opposite party No. 2 and paid the same towards the price of the petrol, which was filled in the vehicle, wherein he was being taken to Delhi and that on the cash memo, Shri P.K. Katiyar endorsed that the amount of Rs. 400/- was paid by him. It is alleged that he made this endorsement to claim reimbursement of the amount from the Government. This was a subject matter of documentary evidence. The cash memo with endorsement was best proof The petitioners have denied that any such sum was paid as price of fuel at any Petrol Pump in or near Aligarh or that any such endorsement was made by Shri P.K. Katiyar on any such cash memo or the ....
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....plained of was committed by the petitioners in the discharge of their official duty. There is no allegation that there was any personal enmity or the petitioners had any personal vendetta against the opposite party No. 2 to falsely implicate him in any case. The case under the Customs Act against the opposite party No. 2 was under investigation on account of detention of the goods of the two consignments at Nhava Sheva Airport, Mumbai and the officials of D.R.I, who had intercepted those goods were not the petitioners, they were totally different officers, who had found that a fraud was being played by bogus consignments and the government was being cheated of the huge sum of money. 51. The name of the opposite party No. 2 was disclosed by one of the accused of that case. His presence was required by Smt. Sanyogita Mishra, Superintendent, Directorate of Revenue Intelligence and investigation for making an inquiry from him. Summons were sent to him once for 19-1-2001 and other for 14-2-2001 but the opposite party no. 2 did not comply with those summons. Instead, he while seeking exemption on the ground of his illness, sent a signed blank paper with a letter to write any stat....
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....Customs Act, 1962 reveal that no allegation was made at the earliest available opportunity that he was forcibly taken from his house or that any deceitful means was employed to take him from his house. The version of the petitioners in this regard is that since two of them were deputed from Delhi and one Shri Vivek Chaturvedi, petitioner was directed on telephone to cooperate, therefore, they along with other staff of the local Unit reached his house in the morning at about 6.30 a.m. and requested him to accompany S/Shri D.P. Saxena and P.K. Katiyar, and he accepted their request and went inside the house and came back well dressed up and prepared for the journey. He was thereafter taken to Delhi in the said Ambassador Car, which was official car of petitioner Shri Vivek Chaturvedi to Delhi and produced there and his statement was recorded. Petitioner No. 1, Shri Vivek Chaturvedi did not accompany them. 56. It is submitted on behalf of the petitioners that the petitioners 2 and 3 took Shri R.K. Singh, opposite party no. 2 to Delhi in the official car in discharge of their official duty without using any force or employing any deceitful means, therefore, it would neither be ....
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....he discharge of his official capacity. Before Section 197 Cr. P.C. can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in discharge of his official duties. 58. "Official" according to the dictionary, means pertaining to an office, and "official act" or "official duty" means an act or duty done by an officer in his official capacity. Thus, use of the expression "official duty" in Section 197 Cr. P.C. implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. 59. 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. The act must fall within the scope and range of the official duties of the public ....
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....he appropriate competent authority. 63. One of the test as noted above, in considering the question of requirement of sanction under Section 197 is that the omission or neglect on the part of the public servant to commit the act complained of could have made him liable or answerable for a charge of dereliction of his official duty. In the present case, two of the petitioners were deployed from Delhi and one was directed on phone to ensure presence of opposite party No. 2 at D.R.I., New Delhi on 16-1-2001 and in compliance thereof they went to their house and requested him and took to Delhi. As such the act committed by them was in discharge of their official duty because if the petitioners would have declined to follow the direction of their superior officers they would have been answerable for the charge of in subordination and dereliction of duty. 64. In the State of Orissa through Kumar Raghvendra Singh and Others v. Ganesh Chandra Jew - (2004) 8 SCC 40, the Hon'ble Supreme Court while considering the question of sanction of Section 197 of the Code held as follows :- "The pivotal issue i.e. applicability of Section 197 of the Code needs careful consideration. ....
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....e discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or 'purporting to act in the discharge of his official duties. 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. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There can be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the a....
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....on the findings that there was absolutely no ground to proceed against the accused-appellant. 69. In Ramesh and Others v. State of T.N. - (2005) 3 SCC 507 also the Hon'ble Supreme Court quashed the prosecution on the ground that the material on record did not furnish legal basis for the Magistrate to take cognizance of the offences alleged. 70. Obviously, the acts performed by the petitioners in taking the complainant/opposite party No. 2 to Delhi can be said to have been done in discharge of official duty because the refusal or non-compliance of the orders would have made them liable for disciplinary action on the administrative side. Therefore, sanction was required in the present case under Section 197 of the Code before prosecuting them. This is why the Investigating Officer has also made a request through proper channel for according sanction for prosecution of the petitioners. 71. Once it is held that sanction was must and there being no sanction the petitioners cannot be permitted to be subjected to the ordeal of the trial and it would amount to the abuse of the process of the Court to permit them to be tried. The Central Government has already declin....