TaxTMI 
TaxTMI 
TaxTMI 
2015 (3) TMI 1400
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....me Branch, Team-I, Vepery, Chennai, respondent herein, to defreeze the petitioner's bank accounts (1)Salary account in A/c.No.50100008256170 maintained in HDFC Bank, Tiruvannamalai Branch and (2) Personal account in A/c.No.00000010860298490 maintained in State Bank of India, Tiruvannamalai Branch. 4. The petitioner has contended that he was the absolute owner of the approved plot bearing No.5 to an extent of 3600 sq.ft, comprising in Survey No.317/1 (part), Subramanian Colony, Velachery Village, Chennai, and that he had purchased the same on 02.09.1982, registered in Document No.2963/1982 in the office of the Joint Sub-Registrar, Saidapet. 5. The petitioner has further submitted that when the defacto complainant approached him in the year 2013, with an intention to purchase a plot, the petitioner had disclosed all the facts regarding the existence of development agreement with a builder M/s.Nathan Foundations on 15.12.1999 and also, about an award passed in the Arbitration proceedings initiated by the said developer M/s.Nathan Foundations. Petitioner in CrlMP.No.527 of 2015 has also contended the defacto complainant came forward to purchase the said plot with the knowledge ....
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....de two payments by way of Demand Drafts, in the name of the petitioner, for a sum of Rs. 80,00,000/- and Rs. 60,00,000/- respectively. The Demand Drafts have been encashed from the above mentioned Bank account of the petitioner. Thus, for the reasons stated supra, he has objected to the prayer sought for in CrlMP.527 of 2015 filed under Section 451 CrPC for defreezing the accounts. 9. One of the grounds raised by the petitioner, in CrlMP.No.527 of 2015, filed under Section 451 of the Code, is that, the respondent Police, without any knowledge and notice to the petitioner, has frozen the petitioner's Bank accounts, and thus, there is a violation of Section 102 of CrPC. 10. Reading of the impugned order discloses that when the wife of the petitioner, Mrs.Mallika filed a petition before the lower Court, in CrlMP.No.113 of 2015 and sought for a direction from the said Court to defreeze the accounts maiantained in HDFC Bank, vide order dated 29.01.2015 in CrlMP.No.113 of 2015, the prayer sought for, by Mrs.Mallika has been allowed on the ground that she is not an accused in the criminal case. By observing that Mrs.Mallika, is not an accused in Crime No.131 of 2014 under Sections....
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....roperty which may be alleged or suspected to have been stolen, or which may be found under circumstances, which create suspicion of the Commission of any offence. (2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer. (3) Every police officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be, conveniently transported to the court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the court as and when required and to give effect to the further orders of the court as to the disposal of the same." 13. Offences under Sections 406 and 420 read with 34 IPC have been registered against the petitioner. According to the defacto complainant, knowing fully well, the development agreement dated 15.12.1999 entered into between the petitioner and M/s.Nathan Foundation Private Limited and also the award dated 02.07.2011, in the arbitration proceedings, the petitioner has sold the property for a sum of Rs. 2,80,00,000/- for which two payments ....
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....s in a statute. 18. In LT.-Col. Prithi Pal Singh Bedi v. Union of India reported in 1983 (3) SCC 140, at Paragraph 8, held as follows: "8. The dominant purpose in construing a statute is to ascertain the intention of the Parliament. One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision the Court should adopt literal construction if it does not lead to an absurdity. ....If the literal construction leads to an absurdity, external aids to construction can be resorted to. To ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed, the purpose for which it is enacted and the object which it is required to subserve and the authority by which the rule is framed. This necessitates examination of the broad features of the Act. " 19. In Narendra H.Khzurana v. Commissioner of Police reported in 2004 (2) Mh.L.R. 72, it is held that it must be noted the proper course in interpreting a statute in the first instance is to examine its language and then ask what is the natural meaning uninfluenced by....
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....rued as to render justice wherever reasonably possible and to avoid injustice from a mistake of court. He further states (at pages 135 and 136) that: "Consideration of hardship, injustice or absurdity as avoiding a particular construction is a rule which must be applied with great care. "The argument ab inconvenienti", said LORD MOULTON, "is one which requires to be used with great caution"." (ii) In the words of Tindal, C.J., in Sussex Peerage case [(1844) 11 Cl & F 85], wherein, he said thus, "If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves so alone in such cases best declare the intent of the lawgiver. (iii) In Nairin v. University of St. Andrews reported in 1909 AC 147, the Apex Court held that, "Unless there is any ambiguity it would not be open to the Court to depart from the normal rule of construction which is that the intention of the Legislature should be primarily gathered from the words which are used. It is only when the words used are ambiguous that they would stand to be examined and construed in the light of surrounding cir....
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....led, it would be wrong to take the definition as destroying the essential meaning of the word defined." (ix) In Kanai Lal Sur v. Paramnidhi Sadhukhan reported in AIR 1957 SC 907, the Supreme Court held that, "it must always be borne in mind that the first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. ] The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise. When the material words are capable of two constructions, one of which is likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achievement of the said policy, then the courts would prefer to adopt the latter construction. ....
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....ruction ought to prevail, unless there be some strong and obvious reason to the contrary. But the rule adverted to is subject to this condition, that however plain the apparent grammatical construction of a sentence may be, if it be properly clear from the contents of the same document that the apparent grammatical construction cannot be the true one, then that which, upon the whole, is the true meaning shall prevail, in spite of the grammatical construction of a particular part of it." And substantially the same opinion is expressed by Lord Selborne in Caledonian Ry, v. North British Ry. (1881) 6 AC 114 (222):-- "The mere literal construction of a statute ought not to prevail if it is opposed to the intentions of the legislature as apparent by the statute, and if the words are sufficiently flexible to admit of some other construction by which, that intention can be better effectuated." Again Lord Fitzgerald in Bradlaugh v. Clarke, (1883) 8 AC 354 at p. 384 observed as follows:-- "I apprehend it is a rule in the construction of statutes that in the first instance the grammatical sense of the words is to be adhered to. If that is contrary to, or inconsistent with, any expressed inte....
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....xim, "ut res magis valiat quam pereat", lest the intention of the legislature may go in vain or be left to evaporate into thin air." (xvi) In C.I.T., Madras v. T.Sundram Iyengar (P) Ltd., reported in 1976 (1) SCC 77, the Supreme Court held that, if the language of the statute is clear and unambiguous and if two interpretations are not reasonably possible, it would be wrong to discard the plain meaning of the words used, in order to meet a possible injustice. (xvii) If the words are precise and unambiguous, then it should be accepted, as declaring the express intention of the legislature. In Ku.Sonia Bhatia v. State of U.P., and others reported in 1981 (2) SCC 585 = AIR 1981 SC 1274, the Supreme Court held that a legislature does not waste words, without any intention and every word that is used by the legislature must be given its due import and significance. (xviii) In Philips India Ltd., v. Labour Court reported in 1985 (3) SCC 103, the Apex Court, at Paragraph 15, held as follows: "(15) No cannon of statutory construction is more firmly, established than that the statute must be read as a whole. This is a general rule of construction applicable to all statutes alike ....
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....ention when the language of the provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot rewrite or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well settled that the real intention of the legislation must be gathered from the language used. ......But the intention of the legislature must be found out from the scheme of the Act." (xxiii) In Indian Dental Association, Kerala v. Union of India reported in 2004 (1) Kant. LJ 282, the Court held that, "The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. The object of all interpretation is to discover the intention of Parliament, "but the intention of Parliament must be deduced from the language used", for it is well-accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordi....
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....es should not proclaim that they are playing the role of a lawmaker merely for an exhibition of judicial valour. They have to remember that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. This can be vouchsafed by "an alert recognition of the necessity not to cross it and instinctive, as well as trained reluctance to do so". (See Frankfurter: "Some Reflections on the Reading of Statutes" in Essays on Jurisprudence, Columbia Law Review, p. 51.) 16. It is true that this Court in interpreting the Constitution enjoys a freedom which is not available in interpreting a statute and, therefore, it will be useful at this stage to reproduce what Lord Diplock said in Duport Steels Ltd. v. Sirs [(1980 (1) All.ER 529] (All ER at p. 542cd): "It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be....
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....ical meaning of the words. If that is contrary, to or inconsistent with any express intention or declared purpose of the Statute, or if it would involve any absurdity, repugnancy or inconsistency, the grammatical sense must then be modified, extended or abridged, so far as to avoid such an inconvenience, but no further. The onus of showing that the words do not mean what they say lies heavily on the party who alleges it must advance something which clearly shows that the grammatical construction would be repugnant to the intention of the Act or lead to some manifest absurdity." (xxix) In Visitor Amu v. K.S.Misra reported in 2007 (8) SCC 594, the Supreme Court held that, "It is well settled principle of interpretation of the statute that it is incumbent upon the Court to avoid a construction, if reasonably permissible on the language, which will render a part of the statute devoid of any meaning or application. The Courts always presume that the legislature inserted every part thereof for a purpose and the legislative intent is that every of the statute should have effect. The legislature is deemed not to waste its words or to say anything in vain and a construction which attribu....
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....on at one place in the provision the legislature also intended the condition to be applied at some other place in that provision." (xxxiii) In Satheedevi v. Prasanna reported in (2010) 5 SCC 622, the Supreme Court held as follows: "12. Before proceeding further, we may notice two well-recognised rules of interpretation of statutes. The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction, only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise-Kanai Lal Sur v. Paramnidhi Sadhukhan [AIR 1957 SC 907] 13. The other important rule of interpretation is that the court cannot rewrite, recast or reframe the legislation because it has no....
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.... "not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern that the statute was intended to remedy." (All ER p. 53 I) 57. These principles have been followed by this Court in its Constitution Bench decision in Union of India v. Sankalchand Himatlal Sheth [1977 (4) SCC 193]. At SCC p. 240, Bhagwati, J. as His Lordship then was, in a concurring opinion held that words in a statute cannot be read in isolation, their colour and content are derived from their context and every word in a statute is to be examined in its context. His Lordship explained that the word context has to be taken in its widest sense and expressly quoted the formulations of Lord Viscount Simonds, set out above. 23. In the context of purposive construction, Hon'ble Justice Sinha in New India Assurance Co. Ltd., v. Nusli Nerille Wadia reported in 2008 (3) SCC 279, states that, "With a view to read the provisions of the Act in a proper and effective manner, we are of the opinion that literal interpretation, if given, may give rise to an anomaly or absu....
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.... whole scope of the statute. 27. The Hon'ble Mr. Justice Hidayatullah, in M/s.Sainik Motors v. State of Rajasthan reported in AIR 1961 SC 1480, observed that ordinarily though the word "shall" is mandatory, it can be interpreted as directory if the context and intention otherwise demands. 28. In P.T.Rajan v. T.P.M.Sahir reported in 2003 (8) SCC 498, the following conclusions are relevant, "45. A statute as is well known must be read in the text and context thereof. Whether a statute is directory or mandatory would not be dependant on the user of the words 'shall' or 'may'. Such a question must be posed and answered having regard to the purpose and object it seeks to achieve. 46. ..... 47. The construction of a statute will depend on the purport and object for which the same had been used. ...... 48. ..... 49. Furthermore, a provision in a statute which is procedural in nature although employs the word 'shall' may not be held to be mandatory if thereby no prejudice is caused." 29. In Ashok Lanka v. Rishi Dixit reported in 2005 (5) SCC 598, para No.53 is relevant, which reads as under:- "53. The question as to whether a statute is mandatory or directory wo....
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....e directory, it will be construed as mandatory, whereas if by holding it mandatory, serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory. But all this does not mean that the language used is to be ignored, but only that the prima facie inference of the intention of the Legislature arising from the words used may be displaced by considering the nature of the enactment, its design and the consequences flowing from alternative construction. Thus, the use of the words 'as nearly as may be' in contrast to the words 'at least' will prima facie indicate a directory requirement, negative words a mandatory requirement 'may' a directory requirement and 'shall' a mandatory requirement." 118. Maxwell, in Chapter 13 of his 12th Edition of 'The Interpretation of Statutes', used the word 'imperative' as synonymous with 'mandatory' and drew a distinction between imperative and directory enactments, at pages 314-315, as follows: "Passing from the interpretation of the language of statutes, it remains to consider what intentions are ....
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....used to persons affected by the application of such provision; (c) Whether the provisions are enabling the State to do some things and/or whether they prescribe the methodology or formalities for doing certain things; (d) As a factor to determine legislative intent, the court may also consider, inter alia, the nature and design of the statute and the consequences which would flow from construing it, one way or the other; (e) It is also permissible to examine the impact of other provisions in the same statute and the consequences of noncompliance of such provisions; (f) Physiology of the provisions is not by itself a determinative factor. The use of the words 'shall' or 'may', respectively would ordinarily indicate imperative or directory character, but not always. (g) The test to be applied is whether non-compliance with the provision would render the entire proceedings invalid or not. (h) The Court has to give due weightage to whether the interpretation intended to be given by the Court would further the purpose of law or if this purpose could be defeated by terming it mandatory or otherwise. 120. Reference can be made to the following paragrap....
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....tory prescription would vitiate the transfer though no specific power had been conferred upon the Corporation to transfer the property. 23. In State of Haryana and Anr. v. Raghubir Dayal [(1995) 1 SCC 133], this Court has observed as under: '5. The use of the word 'shall' is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment, or consequences to flow from such construction would not so demand. Normally, the word 'shall' prima facie ought to be considered mandatory but it is the function of the Court to ascertain the real intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed thereon. The word 'shall', therefore, ought to be construed not according to the language with which it is clothed but in the context in which it is used and the purpose it seeks to serve. The meaning has to be described to the word 'shall; as mandatory or as directory accordingly. Equally, it is settled law that when a statute is passed for the purpose of enabling the doing of something and prescribes ....
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..... It is said that the purpose of criminal law is to permit everyone to go about their daily lives without fear of harm to person or property and it is in the interests of everyone that serious crime be effectively investigated and prosecuted. There must be fairness to all sides. (Attorney General's Reference (No. 3 of 1999) (2001) 1 All ER 577 Reference : Justice G.P. Singh on 'Principles of Statutory Interpretation', 11th Edition 2008). In a criminal case, the court is required to consider the triangulation of interests taking into consideration the position of the accused, the victim and his or her family and the public. 126. The basic purpose of interpretation of statutes is further to aid in determining either the general object of the legislation or the meaning of the language in any particular provision. It is obvious that the intention which appears to be most in accordance with convenience, reason, justice and legal principles should, in all cases of doubtful interpretation, be presumed to be the true one. The intention to produce an unreasonable result is not to be imputed to a statute. On the other hand, it is not impermissible, but rather is acceptable, to....
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....tute will normally lead to the conclusion that the word 'shall' imposes an obligation, whereas the word 'may' confers a discretionary power. But that by itself is not decisive and the Court may, having regard to the context and consequences, come to the conclusion that the part of the statute using 'shall' is also directory. It is primarily the context in which the words are used which will be of significance and relevance for deciding this issue. 129. Statutes which encroach upon rights, whether as regards person or property, are subject to strict construction in the same way as penal Acts. It is a recognized rule that they should be interpreted, if possible, so as to respect such rights and if there is any ambiguity, the construction which is in favour of the freedom of the individual should be adopted. (See 'Maxwell on The Interpretation of Statutes', 12th Edition by P. St. J. Langan) 130. This Court in the case of Devinder Singh (supra) held that the Land Acquisition Act is an expropriatory legislation and followed the case of Hindustan Petroleum Corporation v. Darius Shapur Chennai and Ors. [(2005) 7 SCC 627]. Therefore, it should be const....
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.... for the offences under Sections 420 IPC and Section 4 and 5 of Prize Chits and Money Circulation (Banning) Act, 1978. Subsequently, investigation has been transferred to EOW-II Unit, Salem. Offence has been intially registered under Section 420 IPC, had been altered into Section 420 IPC and Section 5 of TNPID Act. The petitioner therein was maintaining two bank accounts in IDBI Bank Ltd and his wife was also maintaining a separate accounts in the same Bank. She was also not an accused in the crime registered. Investigating Officer has sought for freezing of the Bank account of the petitioner therein and accordingly, they were frozen. CrlOP Petitions were filed under Section 482 CrPC, to defreeze the bank accounts on the grounds inter alia that provision under Section 102 (3) has not been followed and that freezing of bank accounts was not immediately reported to the learned Magistrate. 32. In R. Sivaraj's case, the reliance has been made to the decision of this Court in Padmini v. The Inspector of Police, DCB, Tirunelveli and others reported in 2008 (3) CTC 657, Vinoshkumar Ramachandran Valluvar v. The State of Maharashtra, reported in 2011 (1) MWN (Cr.) 497 (FB) (Bom), and ....
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.... 21. In VINOSHKUMAR RAMACHANDRAN VALLUVAR VS. THE STATE OF MAHARASHTRA [2011 (1) MWN (Cr.) 497 (FB)(Bom.)], a Full Bench of the Bombay High Court held that the requirement of reporting of freezing of bank account to the Magistrate prescribed under Section 102(3) Cr.P.C is mandatory in nature. 22. In pursuing their investigation under Section 102 Cr.P.C., the Code empowered the police officers to deprive a person of his properties. In this context, the phrase, "shall" employed in Section 102(3) Cr.P.C, is held to be mandatory in nature. Violation of it cannot be an irregularity committed by the investigating officer. 23. Very recently, a learned single judge of this court in Crl.O.P.No.13103 of 2013, etc, on 30.8.2013 [T.SUBBULAKSHMI VS. THE COMMISSIONER OF POLICE, EGMORE, CHENNAI AND OTHERS] also took similar view." 35. Ultimately, while declining to accept the contention of the learned Additional Public Prosecutor that it was only an irregularity in not reporting of a freezing of bank accounts and that it would not vitiate the same, the learned Judge of this Court, has directed defreezing of the accounts of the accused therein. 36. A cursory look at sub Section (3) of S....
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.... on such report, transmit the same without delay to the Magistrate. 39. Section 159 of the Code of Criminal Procedure which deals with Power to hold investigation or preliminary inquiry states that Such Magistrate, on receiving such report, may direct an investigation, or, if he thinks fit, at once proceed of depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into or otherwise to dispose of, the case in the manner provided in this Code. 40. Section 164 of the Code of Criminal Procedure which deals with Recording of confessions and statements states that (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any, time afterwards before the commencement of the inquiry or trial: Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force. (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is....
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....ng to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom all accused person is forwarded under this section may, whether he has or not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that-[(a) The Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding- (i) Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) Sixty days, where the investigation relates to any other offence, And, on the expiry of the s....
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....d that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together was a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.] (3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing. (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate. (5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary. (6) Where any order stopping further investigation ....
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....e charge against the accused. (3) If the court of the Chief Judicial Magistrate is mentioned in the bond, such court shall be held to include any court to which such Magistrate may refer the case for inquiry or trial, provided reasonable notice of such reference is given to such complainant or persons. (4) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Magistrate the original with his report. 44. Section 173 of the Code of Criminal Procedure which deals with Report of police officer on completion of investigation states that (1) Every investigation under this Chapter shall be completed without unnecessary delay.(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) The names of the parties; (b) The nature of the information; (c) The names of the persons who appear to be acquainted with the circumstances of the case; (d) Whether any offence appears to have been committed and, if so, by ....
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....tary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and the provisions of' sub-section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)." 45. Reverting to Section 102(3) of CrPC, every police officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction. As per Sub Section (1) of Section 102 CrPC, any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances, which create suspicion of the Commission of any offence. 46. Sub Section (3) of Section 102 of CrPC also states that where the property seized is such that it cannot be, conveniently transported to the court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the court as and when required and to give effect to the further orders of the court as to the disposal of the same. 47. Reading of sub-section (3) of Section 102 CrPC, makes it clear that every police officer acting und....