TaxTMI 
TaxTMI 
2015 (1) TMI 979
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....ing out of case crime No. 14 of 2002 in which cognizance of offence under Sections 452, 342, 504, 506, 392, 367, 193, 211, 34, 420, 467, 468, 471, 347, 120B of the Indian Penal Code has been taken vide order dated 4-3-2009. 3. For reference to record, Crl. Misc. Case No. 1635 of 2009 titled 'Jogendra Singh and 14 others v. State of U.P and Sri R.K. Singh' is being taken up. 4. It has been contended by learned Counsel for the petitioners namely Shri Tripurari Ray, Advocate, assisted by Shri Ajai Kumar Singh, Advocate, that the petitioners are all employees of the Government of India serving in the Department of Revenue, Ministry of Finance, ranging from Secretary level to the level of Sepoy. The facts culminating in filing of impugned charge-sheet, in brief, as pleaded on behalf of the petitioners, are that officers of the Directorate of Revenue (for short 'DRI') intercepted consignments of cargo at Mumbai which had been cleared by customs authorities at ICD, Hyderabad. It was found that chalk powder/marble powder was being exported as "Neproxen". Total value of the goods was in excess of rupees three crores. During the investigation of the case under the Customs Act....
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.... bearing No. 35 of 2003 was however filed against fifteen accused, including petitioner nos. 7 to 9. 10. The accused in charge-sheet No. 35 of 2003 filed two petitions under Section 482 Cr.P.C. viz. Crl. Misc. Case No. 978 of 2005 titled 'Jogendra Singh and 11 others v. State of Uttar Pradesh' and Crl. Misc. Case No. 977 of 2005 titled "Vivek Chaturvedi and two others v. State of Uttar Pradesh" - 2014 (308) E.L.T. 11 (All.). Both the petitions were allowed vide a detailed judgment running into 29 pages, dated 4-7-2006. The judgment which has been read in extenso in Court mentions all the events, sequentially. The relevant portion needs to be extracted therefrom extensively to consider whether the entire issue being raised at this juncture in context of the incident of 16-2-2001 has already been considered and adjudicated earlier by this Court in its jurisdiction under Section 482 Cr.P.C. Relevant portion from the said judgment reads as under : "The officers of the Directorate of Intelligence and Investigation (for short DRI) intercepted two consignments of cargo in two containers at Nhava Sheva, Mumbai, which were cleared by customs authorities at ICD, Hyderabad. The sai....
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.... 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. Sri 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 documents for export. On reference being given by Sri Ravindra Rastogi, his old friend, he contacted Shri R.K. Singh, opposite party no. 2, Inspector of Central Excise at Lucknow and sought his help to clear hurdles at Nhava Sheva port for the consignments intercepted by DRI, exported in the name of M/s. Shri Vishnu Merchants and M/s. Pashupathi Traders from ICD, Hyderabad. In his statement Shri Bimal Kumar Jain (a copy of which has been annexed as Annexure No. 12 to the affidavit of the petitioner no. 1, Vivek Chaturvedi) stated that he sought help of opposite party no. 2, Sri R.K. Singh complainant, who was introduced to him by his close friend Shri Ravindra Rastogi. He managed his air trip from Lucknow to Mumbai and back and made necessary arrangements for his stay in Chanchal Hotel at Paharganj, Delhi and met all his expenses of journey and stay etc. Shri R.K. Singh, op....
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....n 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 before Economic Offences Court, Hyderabad on 23-2-2001 and was granted bail on 1-3-2001. It is also alleged by Shri R.K. Singh, opposite party no. 2, that he was falsely implicated in the said fraudulent scam of consignment due to departmental rivalry. It is also his case that in his absence, his father Shri Lalit Mohan Singh, who is retired DIG (police) has made complaints to the authorities of D.R.I. and police also but no action was taken. He, on being released on 17-6-2001 from the custody, made complaints to police and ultimately moved an application on 22-12-2001 under Section 156(3) of Code to the Chief Judicial Magistrate, Lucknow, who after calling for a report from the police passed an order on 10-1-2001 directing the police to register and investigate the case. It was on the basis of this order that a case was registered at Crime No. 14 of 2002 by the police of Pol....
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.... 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 party no. 2, Shri R.K. Singh, has to face the trial there under Section 135(1) (b)(ii) of Customs Act, 1962. It would also be significant to mention that when the two consignments were detained by D.R.I. Officers, Nhava Sheva, Mumbai and it was found that officers of Customs department of Hyderabad were also involved, a case was registered by the C.B.I. by drawing a formal F.I.R. on 8-8-2002 at R.C. 33(A)/2002 Hydd. and after due investigation 4 officers of Customs and Central Excise and two others have been prosecuted by charge-sheet, dated 10-11-2004, under Sections 120-B, 419, 420, 467, 468, 479 I.P.C. and Sections 13(2) r. w. 13(1)(d) of Prevention of Corruption Act and Sections 132, 135(1)(a) and (b)(ii) of Customs Act, 1962. Due sanction for prosecuting them has also been obtained as required under Section 197 of the Code. The trial is now pending before the Special Sessions Court CB....
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....n 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 the affidavit of Shri Vivek Chaturvedi, petitioner No. 1. This is dated 20-2-2002. It was on the representation of Shri R.K. Singh, opposite party no. 2, whereby he had requested for sanction for prosecution of petitioners. This letter is signed by Shri Nasim Arshi, Under Secretary to Government of India. Prayer for prosecution of Shri Nasim Arshi signatory of this letter and one Shri Chandra Has Rai was also made. Before the learned Magistrate, an affidavit was filed by Sri A.K.Singh, Special Secretary and Chairman of Central Board of Customs and Excise stating that the said letter was genuine and signed by Sri Nasim Arshi, Under Secretary to the Government of India in due discharge of his duties. The learned Magistrate has rejected the said application under Section 340 of the Code also holding that it was not expedient in the interest of justice to launch any prosecution. An appeal filed by opposite party....
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.... travelled in the vehicle. So, this argument is also bereft of any substance. 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 case 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 said amount was claimed by him from the Government. The Investigating Officer could have collected the necessary documentary evidence in support of these allegations but no such evidence was collected and there being no evidence at all, this allegation also goes unsubstantiated by any material and therefore, it can safely be said that....
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....s act of the opposite party no. 2, complainant was sufficient to annoy the officers. Conducting the inquiry/investigation. However, two officers to S/Shri D.P. Saxena and P.K. Katiyar of Customs and Central Excise were sent to Lucknow with a direction to take assistance of the petitioner No. 1 Shri Vivek Chaturvedi, Deputy Director, Customs and Central Excise posted at Lucknow and to ensure his appearance before the D.R.I. officials at Delhi on 16-2-2001. It would be also worth to mention that when the opposite party no. 2 was in custody at Hyderabad in connection with the export of chalk powder in the name NAPROXEN, an application for bail was moved by his counsel. The application was verified and signed by his father, Shri Lalit Mohan Singh, who is a retired IPS officer. Para 1 of this application states that "the petitioners have been arrested by the respondents-Senior Intelligence Officers, Directorate of Revenue and Intelligence, Regional Unit, Hyderabad on 17-2-2001 at 11.30 a.m. at D.R.I., I.P. Bhawan, I.P. Estate, New Delhi. It is submitted that the petitioner is a permanent resident of 60 B, Parag Narain Road, Lucknow. The petitioner is working as Inspector of Centra....
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.... sanction of the Central Government. As stated in the bail application, opposite party no. 2 had himself gone in the vehicle on his own accord. No offence of abduction can be said to have been prima facie disclosed because in the definition of abduction in Section 362 of the Code it has been provided that "whoever by force compels, or by any deceitful means induce any person to go from any place, is said to abduct that person". The learned counsel for the opposite party no. 2 has urged that reaching of the officers in more than one vehicle and forcing the opposite party no. 2 to accompany them deprived him of his liberty and was an offence punishable under Section 365 IPC and that the force used by them could not be said to have been done in discharge of their official duty. He referred to the case of K. Kalimuthu v. State by DSP 2005 SCC (Cri.) 1291, wherein it was held by Hon'ble Apex Court that the protection given under Section 197 Cr.P.C. 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 ....
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....alls within the scope and range of his official duty. There cannot 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 answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 Cr.P.C. does not get immediately attracted on institution of the complaint case. Section 197 Cr.P.C. has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is, under the colour of office. Official duty therefore implied that the act or omission must have been done by the public servant in the course of his servi....
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....roper channel for according sanction for prosecution of the petitioners. 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 declined the sanction as is apparent from the annexure 4 to the affidavit. It was within the jurisdiction of the Central Government to accord or refuse the sanction for prosecution. The Central Government after examining the matter has declined the sanction. Order of the Central Government has been authenticated and communicated to all concerned including Shri R.K. Singh, opposite party no. 2. The opposite party no. 2 has filed an application under Section 340 of the Code before the learned Magistrate but it would appear from the order of the learned Magistrate that Shri A.K. Singh, Special Secretary-cum-Chairman of the Central Board of Customs and Central Excise filed an affidavit before him that the said letter was genuine and was issued and signed by Shri Naseem Warshi, Under Secretary to the Government of India. The learned Magistrate did....
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....filed an application under Section 340 Cr.P.C. to plead that the order vide which sanction to prosecute some of the petitioners had been denied, was forged. Application was dismissed by the magistrate vide order, dated 18-2-2005 (Annexure-8). The magistrate recorded in its order, after considering the relevant material including the affidavit of Shri A.K. Singh, Commissioner, Central Board of Excise and Customs, Government of India, that there was no reason to proceed in the complaint made by the complainant - R.K. Singh. It has been held by the Magistrate that the communication sent by Shri Naseem Arsh, Under Secretary, communicating denial of sanction to prosecute is a genuine document. 15. The respondent-complainant preferred an appeal under Section 341 Cr.P.C. It would not be out of place to mention that the respondent-complainant started making representation/application to various authorities, including the President of India in regard to denial of sanction to prosecute. 16. While the appeal was pending, it appears that the respondent-complainant filed Writ Petition No. 5456 (M/B) of 2007 'Ravindra Kumar Singh v. Union of India and another'. The petition was d....
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....der before him. Learned counsel for the applicant shall file certified copy of this order before the opposite party within a week from today. List this case on 18-3-2009." 20. It appears that under pressure of order passed by the High Court, the investigating agency filed charge-sheet No. 35A/2003 dated 29-10-2008 that has been impugned in this petition. At this point of time, in the impugned charge-sheet, even Senior Officers in the Ministry of Finance, Government of India, who dealt with the issue of considering grant or denial of sanction to prosecute have been implicated. The accused include Senior Officers who were not even related to the incident of 16-2-2001. The Court has been informed that petitioner no. 1-Jogendra Singh, IRS, superannuated as Chairman, Customs and Central Excise Settlement Commission. Petitioner No. 15, Chandrahas Mathur, IRS superannuated and earlier served as Member, Customs and Central Excise Settlement Commission. Likewise petitioner nos. 10, 11, 13, 14 and 15 are IRS Officers and hold senior positions. The said persons had no role to play in regard to the incident of 16-2-2001. Allegation is that the communication vide which Naseem Arsh....
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.... statement given by learned counsel for respondent no. 2 it becomes apparent that the said respondent is pressing charges against above-mentioned petitioners for house trespass, wrongful confinement, robbery, kidnapping/abduction and criminal intimidation. It further becomes apparent that it is the case of respondent no. 2 that the above named six petitioners committed offences in context of the events of 16-2-2001, when the respondent no. 2 was taken from Lucknow to Delhi. 27. Petitioner nos. 8 and 9 namely P.K. Katiyar and D.P Saxena are the persons who came from DRI, Delhi to Lucknow to take respondent no. 2 to Delhi for enquiry/investigation. Vivek Chaturvedi (petitioner no. 7) is the person who was posted at Lucknow at that point of time and gave assistance to P.K. Katiyar and D.P. Saxena. 28. Petitioner Nos. 8 and 9 namely P.K. Katiyar and D.P. Saxena took respondent no. 2 to Delhi in the car driven by Faridul Hasan (petitioner no. 3 in Crl. Misc. Case No. 1407 of 2009). Raghuraj Singh and Gore Lal (petitioner nos. l and 2 in Crl. Misc. Case No. 1407 of 2009) are two Sepoys who assisted the officers. 29. Judgment rendered by this Court, portion of whic....
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....house trespass, kidnapping/abduction or snatching of money when he was produced before Metropolitan Magistrate at Delhi; in the application for bail filed on behalf of respondent no. 2, no allegation was made that respondent no. 2 had been forcibly taken from his house, or any deceitful means had been employed to take him from his house, rather it was the case of the respondent in those applications that respondent no. 2 accepted the request of petitioner nos. 7, 8 & 9, went inside the house, came back well dressed and prepared for journey to Delhi. 32. In view of the findings to the above effect having been recorded in the earlier judgment, it cannot be said even prima facie that offence under Section 452, Indian Penal Code has been committed. 33. It is not the case of respondent no. 2 that the petitioners were not serving in DRI, or that the name of the respondent has not cropped up in the statement of one of the accused directly involved in the commission of offence under the Customs Act. It is further not in dispute that presence of respondent no. 2 was required for enquiry/investigation. That is so because notices had been sent to the said respondent before 16-....
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..... 14 of 2002. From the above-noted facts and circumstances, it has become abundantly clear that after investigation of the case registered as crime No. 14 of 2002 had been concluded, charge-sheet bearing No. 35 of 2003 dated 12-2-2003 had been filed. The said charge-sheet bearing No. 35 of 2003, proceedings arising therefrom, including the order of summoning were challenged before this Court in Crl. Misc. Case No. 978 of 2005 'Jogendra Singh and 11 others v. State of UP' and Crl. Misc. Case No. 977 of 2005 titled 'Vivek Chaturvedi and two others v. State of Uttar Pradesh'. The said two petitions were allowed on merits vide detailed judgment dated 4-7-2006. The judgment has been upheld by Hon'ble Supreme Court of India by way of dismissing the appeal filed by Respondent No. 2. In such circumstances, it was clearly beyond the jurisdiction of the investigating agency to reopen the case, in regard to the same facts and circumstances and file charge-sheet dated 29-10-2008 bearing No. 35A of 2003. No justification for such conduct is coming forth from the side of Respondent No. 1-State. This Court is of the considered opinion that it was beyond the jurisdiction and scope of the investiga....