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2023 (6) TMI 238
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....and applicant no.3-K.C. Meena were posted and working as Inspector with the Excise Department, Surat. On the basis of intelligence with respect to large scale evasion of Central Excise Duty by M/ s.Vishnu Dying Mill, the applicant no.1-U.G. Goel, being Assistant Commissioner, raided the premises for preventing checks. The applicant no.1 along with applicant nos.2 and 3 visited the place at about 18:00 hours on 24.04.1998 and carried out extensive search in the presence of two independent panch - witnesses. The Directors of the Mill and other employees including respondent no.2 - Manishbhai, Assistant Dying Master were present at the place. During the search, the incriminating material like delivery challans, pocket diaries, registers, note-books were seized and recovered from the office of respondent no.2 and area of the mill. During the raid, the respondent no.2-Manish Bagdawala, alleged that he was assaulted by the applicant no.1 so as to pressurize him to confess the certain things. He complained of acute stomach pain and was taken to Sanjivani Hospital at Surat where he refused to take further medical treatment and nothing against the applicants, stated in the form of history b....
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.... complained in the FIR had a reasonable nexus with the official duties of the applicants and therefore, no criminal proceedings could be initiated against the applicants without obtaining sanction of the Government. The learned Trial Court rejected the application, holding that the applicants failed to establish the facts that they are public servants not removable from their office save by or with the sanction of the Government. The order of the Trial Court challenged before the Revisional Court. The Revisional Court, agreeing with the reasons recorded by the Trial Court, dismissed the revision. The matter reached before this Court. The Coordinate Bench of this Court, vide its order dated 16.12.2021, relegated the applicants to file a fresh application before the Trial Court. (iv) Pursuant to the order passed by the Coordinate Bench of this Court, the applicants moved an application Exh.62, inter alia stating that at the relevant time, they were employees of the Central Government and their parent department is Ministry of Finance, Department of Revenue and their service conditions governed by the Central Civil Services (Classification, Control and Appeal) Rules, 1965. It....
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....urt has heard learned counsel Mr. Bhadrish S. Raju, Mr. R.C. Jani and Mr. L.B. Dabhi, for the respective parties. 5. Mr. Bhadrish Raju, the learned counsel appearing for and on behalf of the applicants, raised the following contentions : (i) That pursuant to the order passed by the co-ordinate Bench of this Court, the applicants herein placed on record the necessary documents, to establish primafacie the fact that, the applicants are public servants, serving with the Revenue Department, Ministry of Finance and their appointment authority is the President of India and they cannot be removed without sanction of the Central Government. Despite of these admitted facts, the learned courts below have mechanically rejected the application filed under Section 197 of the Cr.P.C. and therefore, the impugned orders are contrary to the law and evidence on record; (ii) That, pursuant to the raid conducted by the applicants at the mill premises, the evasion of excise duty unearth to the tune of Rs.3.54 crores and after inquiring into the matter, the company and its Directors found guilty for the illegal manufacturing of fabrics without paying the excise duty and the authorit....
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....ed the following case laws: (i) Matajog Dubey Vs. H.C. Bihari, AIR 1956 SC 44; (ii) Krishnakumar Vs. Divisional Asst, 1979 (4) SCC 289; (iii) Bhappa Singh Vs. Ram Pal Singh & Ors., 1981 (Supp) SCC 12; (iv) Deepak Kumar Vs. UOI, 1996 SCC Online Raj 357; (v) Gaurishankar Prasad Vs. State of Bihar, 2000(5) SCC 15; (vi) Abdul Wahab Ansari Vs. State of Bihar, 2000(8) SCC 500; (vii) Prakash Singh Badal & Ors Vs State of Punjab & Ors, 2007(1) SCC 1; (viii) J.P. Singh & Ans Vs. Vinay Kanodiya, Cr.M.A. 4308 of 2009 (ix) General Officer Commanding Vs. CBI, 2012 (6) SCC 228; (x) Om Prakash & Ors Vs. State of Jharkhand, 2012(12) SCC 72; (xi) Devendra Singh & Ors Vs. State of Punjab, Thr. CBI, 2016(12) SCC 87; (xii) D. Devraja Vs. Owaisi Sabeer Hussain, 2020(7) SCC 695; 8. On the other hand, countering the above arguments, Mr. R.C. Jani for R.C. Jani and Associates, appearing for and on behalf of the respondent no. 2 - original informant and State Counsel Mr. Dabhi, submitted that, despite the order passed by the Co-ordinate Bench of this Court, the applicants herein failed to establis....
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....ngs recorded by the courts below and material placed on record, the issue falls for my consideration is whether on allegations made in the FIR and material available of record, Section 197 of the Cr.P.C, is applicable to the facts of the case? 12. It is not in dispute that on 24.04.1998, the applicants being a High Ranking Officials of the Excise and Customs Department, Surat, conducted a raid at the mill premises for preventive checks. During the search proceedings, they recovered and seized incriminating material with respect to evasion of the excise duty and after inquiry, the evasion of excise duty found to the tune of Rs.3.54 crores, for which, the company and its Directors directed to pay the amount of evasion and penalty thereon, to the tune of Rs.7 crores and the order of the Commissioner, Surat has attained the finality upto Supreme Court. The applicant no. 1 was posted and working at Surat as Assistant Commissioner of Central Excise, whereas, the applicant nos. 2 and 3 were posted as Inspector with the Department. During the search operation, the private respondent no. 2 lodged an FIR for the offences as referred above. The investigating agency did not find any substan....
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....tablished that the offence mentioned therein must be committed by public servant and the public servant employed in connection with the affairs of the Union or State is not removable from his office, save by and sanction of the appropriate government. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a clock for doing the objectionable act. 16. The object of sanction of prosecution as provided under Section 197 is to protect the public servants discharging official duties and functions from harassment by initiation of frivolous retaliatory criminal proceedings. [Pukhraj Vs. State of Rajasthan, (1997) 2 SCC 701, Matajog Dobey Vs. S.C. Bhari, AIR 1956 SC 44, State of Orissa Vs Ganeshchandra Jew (2004) 8 SCC 40] 17. In the case of D. Devraja Vs. Owais Sabeer Husain (2020) 7 SCC 695, the Apex Court, after referring various decisions, discussed the scope of Section 197. The relevant paras 37 to 46 read thus, "37. The scope of Section 197 of the old Code of Criminal Procedure, was also considered in P. Arulswami v. State of Madras, where this Court held (AIR p.7....
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.... acts done under the cloak of duty, even though not by virtue of the duty. When he (the police officer) prepares a false Panchnama or a false report he is clearly using the existence of his legal duty as a cloak for his corrupt action or to use the words in stroud's Dictionary as a veil to his falsehood. The acts thus done in dereliction of his duty must be held to have been done "under colour of the duty"." 43. In Om Prakash v. State of Jharkhand, this Court, after referring to various decisions, pertaining to the police excess, explained the scope of protection under Section 197 of the Code of Criminal Procedure as follows (SCC p.89 para-32) "32. The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it (K. Satwant Singh [AIR 1960 SC 266]). The protection given under Section 197 of the Code has certain limits and is available only when the alleged act done by the public servant is ....
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....ccordance with law and the established procedure and without delay. Dispensing with of jurisdictional or statutory requirements which may ultimately affect the adjudication itself, will itself result in people losing faith in the system. So, the reason in that behalf given by the High Court cannot be sufficient to enable it to get over the jurisdictional requirement of a sanction under Section 197(1) of the Code of Criminal Procedure. We are therefore satisfied that the High Court was in error in holding that sanction under Section 197(1) was not needed in this case. We hold that such sanction was necessary and for want of sanction the prosecution must be quashed at this stage. It is not for us now to answer the submission of learned counsel for the complainant that this is an eminently fit case for grant of such sanction." 45. The dissenting view of C. K. Thakkar J. in Sankaran Moitra, supports the contention of Mr. Luthra to some extent. However, we are bound by the majority view. Further more even the dissenting view of C.K. Thakkar, J was in the context of an extreme case of causing death by assaulting the complainant. 46. In K.K. Patel and Another v. State of....
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....cial duty and official duty is not merely a cloak for the objectionable act. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a police man assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be. 68. If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of government sanction for initiation of criminal action against him. 69. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge o....
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....hall be exercised by him directly or through Officers Sub-ordinate to him in accordance with the constitution. Article 77 is pertaining to conduct of Government business, which says that, all the Executive Action of Government of India, shall be expressed in the name of President and President shall make the Rules of the business of the Government of India and for the allocation amongst the ministries. The applicants herein recruited by Department of Revenue, Union of India, Ministry of Finance. The documents referred by the trial Court, indicates that the Executives of the Departments like Secretary or Joint Secretary, as the case may be, having all the powers to remove or dismiss the employee. Thus, in nutshell, based on the power of delegation and procedure of channel of submission, time to time framed by the Union Government and considering the applicable service rules, it prima-facie, established that, at relevant time, applicants were public servants, employed by the Union, not removable from their office with the sanction of the Central Government. Thus, therefore, I am satisfied that the courts below were in error in holding that there is no sufficient evidence brought to t....