Union Of India (Uoi) (Through M.B. ... vs State Of Maharashtra And K. ...
2003 Latest Caselaw 429 Bom

JUDGMENT

A.B. Palkar, J.

1. Both the petitions are being disposed of by common order as issues of law and fact involved are same.

2. These petitions are filed by Union of India through officers of Custom whose names are also mentioned in the Petition as Petitioners and one of whom was verified the Petition. Custom officers who are accused in different criminal cases instituted against them by the respondents are also described as Petitioners are public servant within the meaning of Section 21 of I.P.C.

3. At the relevant time i.e. in the year 1985-86 Petitioners were working as officer in the Department of Customs and were stationed at the Sahar International Airport, Air Intelligence Unit., The Petitioners 1, 2 and 5 were working as Preventing Officers of the Customs whereas Petitioner No.3 was made of India Customs and Central Excise, Service Group 'A'. Petitoner No.3 was working as Assistant Commissioner of Custom 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 Custom 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 Custom Intelligence officer on duty at Sahar Air Port intercepted two Air India Loaders by name Shri Balkrishnan and Shri Motiram Devram Tahsildar, who are original complaints. Balkrishnan is respondent in one Petition and he has filed one complaint. Tahsildar had also filed complaint However, that complaint has been dismissed Balkrishnian and Tahsildar were trying to remove some cargo in a cardboard cartoon from a container which had arrived in Mumbai from Singapore, after breaking open the seal. They had offered some money to the (SIC) 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. The brief case was opened and was found two contain 250 Gold Bars (29 Kgs) of 10 Tolas each of foreign origin valued at Rs. 63.69 lacs in 1986 and today the value of which will be 10 time or more. The Gold Bars were seized under the Panchanama. During their interrogation, it was revealed that said brief case was being removed at the instance of one L.P. Gaur, Senior Security Officer of Air India for monetary consideration. Shri L.P. Gaur is respondent No.2 in Petition No. 311 and as he has filed one of the complaint against the Custom Officers. Disclosures made by Tahsildar and Balkrishnan showed that they were to carry the said carton on a trolley to the Mail Section of the Air India situated at Cargo Complex from where Shri L.P. Gaur was to remove the said carton in his official jeep. Consequently, Gaur was traced at his residence and was brought to the Office of Customs, Air Intelligence Unit for interrogation on the same day. The statements of all of them were recorded under Section 108 of the Custom Act, wherein they admitted their guilt and role played by them in the smuggling of the seized goods. It was also revealed in their statements that earlier on about 3 occasions they had removed gold for monetary consideration at the instance of Shir L.P. Gaur and Gaur used to stand with his office jeep near Nail Section where they would put the packages in the office jeep of Shri Gaur. The leaders as well as Gaur were arrested on 29.11.1985 and after recording their statement they were produced before the Additional Chief Metropolitan Magistrate, Rsplanade, Mumabi. They were granted bail and were subsequently prosecuted in three different criminal cases for the offences under Section 135(1)(a) and 135(1)(b) of Customs Act punishable under Section 135(1)(i) of the said Act and also under Section 5(a) of the Import and Export Control Act 1947. These prosecutions are pending till this date.

5. On being produced before the Magistrate, all three accused Balkirshnan, Tahsildar and Gaur made applications to the Court of Addl. Chief Metropolitan Magistrate that they have been severely beaten and their statements were recorded under threat undue influence and coercion and accordingly they retracted their statements. The learned Additional Chief Metropolitan Magistrate examined their persons in view of the complaint of illtreatment made and found that on Gaur's body 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 found on the left leg on the inner aspect of the knee. The learned Magistrate observed that though the accused made complaint of illtreament, 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 finding 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 found on the person of I.P.Gaur on 2.12.1985 at 11.15 a.m. by Dr.(SIC) attached to Jail are described below:

1. Confusion over alleging medial side liner 6" x 1" size, skin over the above area bluish black, severe pain and swelling present over (Lt) leg.

2. Confusion over (lt) gluteal region 2" x 1" size, skin over the above area bluish black, severe paid present over above area.

3. Swelling of the (Rt) cheek present. C/o. pain in (Rt) ear. No. discharge form (Rt.) ear present.

4. C/o. Pain in (Rt) side of chest but no external injury seen.

6. Similarly the injuries on the person of Balkrishnan noted on the same date and time by the Jail Doctor are described as below:

1. Confusion over (Lt) thigh at the level of (SIC) possa, 4" x 2" in size, skin over the above area bluish blac, severe pain present over (Lt) knee Jt.

2. Confusion over (Lt) leg 3" x 2" in size, skin over the above area bluish black, severe pain present over above area.

3. Confusion (Multiple) over (Lt) gluteal region present oval in shape, 5" x 4" in size, skin over the above area bluish blac, severe pain present over (Lt) gulteal region.

4. Linear confusion 3 to 4, 2"x1" (one) size, present over (Lt) thigh lateral side, skin over the confusion bluish black, severe pain present on above area.

5. Confusion present over (Rt) elbow joint, swelling present over (Rt) elbow joint. No evidence of fracture seen.

6. C.L.W. over forehead (Rt) side liner 1"x1/2" size, skin deep.

7. Subsequently, all the three respondents were prosecuted under different provision of Customs Act as pointed out earlier. They were also detained under the CPFEPOSA. All the three accused i.e. Balkrishinan, Tahsildar and Gaur were subjected to departmental vigilance inquiry by their employer i.e. Air India and were terminated from services. In the adjudication proceedings the seized gold was confiscated and personal penalty was imposed on all the three responsible. These orders were challenged in appeal before CEGAT. The orders passed in adjudication proceedings have been confirmed and the order of CEGAT has not been challenged thereafter and has become final.

8. Respondents filed three difference private complaints in the Court of the learned Magistrate making serious allegations against the custom officers. Learned Magistrate recorded finding that one of the offences 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 (Custom 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 arraigned as accused in the Sessions trial, the complaints filed against them are false and (SIC). 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 connected to the so called illtreatment and assault by the Petitioners during the course of interrogation and recording of confessional statements of the respondents and by no stretch of imagination could be said to be caused in the so called assault by the Custom Officers. Moreover the Petitioners have described in the Petition and in the discharge application that they were working in different capacities as officers of Customs and as such are public servants and could not have been prosecuted in the absence of valid sanction from the Central Government. Petitioners are protected in view of provisions of Section 197 of Cr.PC and also Section 155 of the Customs Act. Learned Sessions Judge did not accept the contention of the Petitioner and rejected their discharge applications and therefore this petition has been filed.

10. In reply to the discharge application, respondents contended interalia that the accused (Petitioners) are claiming sympathy merely because they are Customs Officers. The complaint filed by them against respondents under the Customs Act are false and respondents are not concerned with the seized Gold which was is toisted upon them probably as petitioners are interested in claiming reward. Therefore they used third degree methods for extracting confessions and the said Act can not be claimed to be an act done in course of discharge of official duty and as such no protection of the aforesaid sections can be availed of. The respondents have made complaint of illtreatment at the first available opportunity and the Jail Doctor also found injuries on their person when examined, although after about three days. The allegations made in the different complaints filed by the respondents are serious and are to be decided at the trial of the petitioner and the trial cannot be delayed on false and baseless allegations of the Petitioners. There is no nexus between official discharge of duty and the act complained of. The petitioners committed such a seriou act of beating the complaints by six persons which could have led to their death, and therefore cannot claim protection of Section 197 of Cr.P.C. and Section 155 of Customs Act.

11. One affidavit is filed in the Petition No. 311 of 2002 by L.P. Gaur when the matter came for hearing and he has raised issue of maintainability of Petition filed by Union of India which was also raised at the time of admission 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 Balkrishnian and it is necessary that the Petitioners should be tried before Sessions Court.

12. In this Court Mr. M.L. Sethna, learned Senior counsel with Mr. Mehtra 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 illtreatment made before him and therefore he did not refer the respondents to any medial officer or Registered Medical Practitioner for examination. According to the Criminal Manual, allegations of illtreatment of made, the prisoner's body is required to be examined then and there by the Magistrate in order to find out marks if any are there as alleged and he is required to record result of his examination. It is further described by the Manual that if the Magistrate finds, there is substance and the allegation is well founded he shall at once record complaint and forward the prisoner to a medical officer or Regional Medical Practitioner and shall thereafter make report to the Sessions Court. The learned Magistrate did not find any injury mark which could be co-related to the alleged heating or illtreatment by the Custom officers and did not find it necessary even to refer the respondents to any Medical Officer. The respondents were also represented by an advocate and had applied for bail. Neither respondents nor their advocate requested the learned Magistrate to forward them to the Medical Officer for examination of the injuries. It is obvious that respondents and their advocate were conscious of the fact that the injuries found on their person as noted by the Magistrate are only marks of old injury. Thus even if it is found that on 2.12.85 i.e. after more than 3 days if some injuries, either fresh or old were seen on body of any of the respondent by the Jial Doctor, it is not possible to connect these injuries to the alleged illtreatment or assault on them at the hands of the Petitioners. Injuries noted on their person on 2.12.1985 i.e. After more than 3 days of the so called illtreatment and assault of which even Doctor has not stated the age, can be said to be either stage managed or any case the Petitioners can by no stretch of imagination he said to be the authors thereof. The injuries allegedly seen on 2.12.1985 could not be correlated to the alleged assault on 28.11.1985 and as such on the face of it the complaints being false and (SIC) and were liable to be thrown out at the threshold.

14. Another aspect of the matter is that perusal of the complaints shows that the respondent's claim that they were assaulted by these officers one of whom was holding stick and injuries caused were bleeding and the assault went on for quite some time. They were beaten by fist blows, kicks with shoes on different parts of the body and according to Mr. Gaur he eve became unconscious for a while as a result of this assault and even after regaining consciousness, he was further beaten on different 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 confusion 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 Custom Officers so that their anti social and anti national activity of smuggling goes on. The first object of the respondents was in 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 Magistrate on examination of the body of respondents were not noted by the Medical Officer in his report which would show that even according in the Medical Officer they were only heard injury marks and not injuries as such and therefor as a matter of fact when the respondents were examined by the Magistrate, immediately he noticed no injury as such and considering the allegation of having been repeatedly beaten by six persons with fist blows, kicks, with shoes on and with stick held by one then obviously the complaint on the fact of it was false and no prosecution can be entertained on such a complaint specially when the complaints have ulterior motive as indicated. Hence even on facts the complaint is not worth taking cognizance of any offence and was liable to be summarily dismissed.

17. For considering the legal issues involved, if is necessary to refer to the provisions.

Section 197 of Criminal Procedure Code.

When a person, who is or was a judge or a Magistrate, or a public servant, not removable from his office, save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall give cognizance of such offence except with the previous sanction.

(a) In the case of a person, who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union of the Central Government.

Section 155 of Customs Act.

(1) No suit, prosecution or other legal proceedings shall lie against the Central Government or any officer of the Government or a local authority for anything, which is done, or intended to be done in good faith, in pursuance of this Act or the rules or regulations.

(2) No proceedings other than a suit shall be commenced against the Central Government or any officer of the Government or a local authority for anything purporting to be done in pursuance of this Act, without giving the Central Government or such officer a month's previous notice in writing of the intended proceedings and of the cause thereof or after the expiration of three months from the accrual of such cause.

18. On behalf of respondents, serious objection was raised at the time of admission and even during the course of arguments that the petition is not maintainable in as much as it is filed by the Union of India. It was contended by Mr. Hundergi, 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 in 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 or 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 complaints ? It is therefore necessary to consider the role of Union of India in filing such a Petition. In fact, when this point was seriously urged, I inquired from the learned counsel appearing for the parties as to whether there is any judgment in support of this proposition and the learned counsel stated that there is no authority on the point. It is true that as an accused in criminal case, each of the officer had every right to challenge that order and if we see the description in the petition, it is filed through or at the instance of the accused (Petitioner). Petition is not signed by all of them. However, one of them has verified the same and although the Vakalantama was not earlier filed on behalf of all at the stage of hearing, Mr. Mehta filed the same on behalf of all the Petitioners. It was seriously contended that the Government has every right to file petition and protect the officers. The Government which is the sanctioning authority is aggrieved by the fact that there is a attempt to bye pass it and file prosecution and therefore the Government has every right in challenge such order/action. Even if as a sanctioning authority, if the case is placed before the Government then in that capacity the Government can consider the issue of granting or not granting sanction. The question reality is why should the government beheld to be not completed to file such petition. A situation can be envisaged in which every individual officer who had been harassed by some smuggler or some other anti social element would request the Government to protect him or otherwise why the government should not act against such acts of smugglers or bootleggers, if it is of the view that its officers are being harassed and threaten obliterates by such elements from taking action against them. It is in fact the duty of the Government to protect honest and sincere officers who dare take serious action against such forces why action of the Government be viewed with suspicion if it is trying to protect honest sincere and dare devil officers entrusted with the hard duty of controlling crimes like smuggling.

19. There can also be a case where even an association of officers may approach the Government if it finds that various members of it are being subjected to such harassment by filing false complaints against them by the persons against whom they are taking action of are intending to take action and on such 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 its 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 fully justified in refusing sanction. The Government has every reason to feel that such prosecution are being filed by unscrupulous elements in society by passing its authority to consider the property of allowing the prosecution to be launched.

20. It was next contended by Mr. Mundergi that it is not even pleaded that the accused Petitioners are officers of the Central Government not removable from office without sanction. In fact the learned Sessions Judge also has also observed that no claim is made by the accused that they are public servant not removable from office without the sanction of the Government.

21. Mere perusal of the discharge application filed in the Sessions Court and perusal of the present petition shows how that there is no substance in the argument and the approach of the learned Sessions Judge is wrong. In the very first para of the application, it is clearly stated that all the accused were government officers of customs Air Intelligence Unit. Accused No. 1, 2 7 $ were working as Preventive Officer of Customs, whereas accused No.3 was working as Assistant collector of Customs. All of them were at the relevant time working as officers of Customs, Air Intelligence Unit at Sahar International Air Port. This is not even challenged and on the contrary it is alleged that accused are claiming sympathy merely because they are officers of Customs Department.

22. Another aspect of the matter is that the protection claimed is two fold one under Section 197 of Cr.P.C. and the other under Section 155 of Customs Act. Mere perusal of Section 155 of the Customs Act shows that it applies to any prosecution or other legal proceedings either against the Central Government or any of the officer of the Government or a local authority for any thing which is done or intended to be done in good faith in pursuance of the act or the Rules and Regulations and Sub-section (ii) of Section 155 provides for issuance of appropriate notice as condition precedent.

23. Section 155 of the Customs Act is totally different from Section 197 of Cr.P.C. It protects all officers irrespective to their designation if the act is done or intended to be done in good faith in pursuance of the Act. Petitioners are custom officers. They are highly placed officer attached to Air Intelligence Unit for preventing Smuggling activities and I am convinced this point has been raised only 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.

24. There 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 take same 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 occasion to consider this issue in a case in which facts were similar and that judgment is reported in the matter of A.K. (SIC) 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 his brother, they did not appear inspite of service through Indian High Commission in Dubai and respondent No. 1 showed the audacity informing the enforcement directorate officers to come to Dubai to record his statement and also informed that he is not in a position to come due to his business in Dubai and also called upon the Directorate in explain reasons for requiring his presence before the Enforcement Directorate. Therefore a detention order was passed against him under the COFEPOSA. It also could not be served and ultimately a red alert was issued through ut the country.

He came to be apprehended then be surreptitiously entered into India. While Trying to escape out of the country he was accosted and was produced before the Magistrate. His statement was recorded when produced before the Magistrate for remand. He retracted his statement given before the authorities when produced before the Magistrate claiming that it was obtained under duress and also alleged that he was assaulted by Enforcement Directorate. The officers of Enforcement Directorate were prosecuted when the Magistrate took cognizance of such complaint made against them. The order of Magistrate taking cognizance was challenged as invalid for want of sanction. The prosecution was quashed on the ground that sanction was necessary. Reference was made to Matajog Dobey v. H.C. Bhari reproduced in of the Judgment read as:

"Reading the complaints alone in these two cases, even without the details of facts as narrated by the witnesses at the judicial inquiries, it is fairly clear that the assault and use of criminal force etc. alleged against the accused are definitely related to the performance of their official duties. But taken along with them, it seems to us to be an obvious case for sanction."

26. The following principals were reiterated by the Apex Court in , Director of Inspection and Audit v. C.L. Subramaniam.

"In order to apply the provisions of Section 197 Cr.P.C. two conditions must be fulfilled; one is that the offence mentioned therein must be committed by a public servant and the other is that the public servant employed in connection with the affairs of the Union or a State is not removable from his office save by or with the sanction of the Central Government or the State Government, as the case may be. The 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 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 public servant could claim to have done these acts by virtue of his office, that is to say, there must be a reasonable connection between the act and the discharge of official duties. It is in this context that the words 'purporting to act in discharge of official duties' assume importance. The public servant can only be said to act or purporting to act in the discharge of his official duties if the act is such as to lie within the scope of his official duties.

In a Judgment , Shambhoo Nath Mishra v. State of U.P. the Apex Court has no doubt pointed that fabrication of record and misappropriation of public funds by public servant is not his official duty and sanction for his prosecution for such alleged offence is not necessary. Similarly in another case ; B.S. Sambhu v. T.S. Krishnaswamy, the facts were that the appellant a Munisff Magistrate by a letter to the District Judge submitted his remarks against the allegations made by the Respondent, an advocate in a transfer petition for transfer of a suit pending in the Appellant's Court and while doing so called the Respondent 'rowdy' 'a big gambler' and 'a mischievous element' and on this letter being read in open Court the Respondent filed criminal complaint against the Appellant without the sanction contemplated under Section 197 Cr.P.C. and it was held that the act complained of had o connection with the discharge of his official duly by the Appellant. In this case also the Judgment in Matajog Dobey's case (supra) was referred to. Similar view is taken in the judgment , Somchand Sanghvi v. Bibhut Bhushan Chkravarth and held that any act illegally done in exercise of duly as a public servant, sanction for prosecution is necessary in that case an Asstt. Police Commissioner had refused to grant bail in respect of an offence under Section 420, I.P.C. unless the accused did something which he was not bound to do and it was held that the sanction was necessary.

The Case of Mrs. Mary Kutty Thomas v. State of Maharashtra reported in 1983(2) Bombay Cases Reporter 73 (1983 Cri.L.J. 1654) was also cited before me in that case and has also been cited here. It is clear that it was a case on facts which were totally different.

What is material to be noted that is if it 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 would not be covered by Section 197 of Cr.P.C. For example if a (SIC) 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 Custom officer in assault and man handle the respondents for the purpose of recording of while recording their statements. The argument 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 at is recording confessional statements. In the course discharge of official duty or purported discharge of the duty if the officers exceed his authority of to better say manhandles or assaults the person then the act is definitely done in the purported discharge of duty. There is a clear nexus between the discharge of duly and the act complained of. It is un argument to say that since it is not duty of the officer of custom department to compel a person to confess or to coerce him for that purpose and therefore to assault him, the protection under Section 197 is not available when the allegations constitute such an act, in fact in the case of P.K. Pradhan v. State of Sikkim reported in 2001 SCC 704, the Supreme Court has pointed out that Test in determine the applicability is (1) That the act must be an offence and (2) must be done in discharge of official duty i.e. there must be reasonable connection between the act and official duty. It does not matter that the act exceeds hat is strictly necessary for the discharge of official duty.

27. The Supreme Court has said in para 5:

'The legislature mandate engrafted in Sub-section (1) of the Section 197 barring a Court from taking cognizance of an offence except with the previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from office save by or with the sanction of the Government, touches the jurisdiction of the Court itself. It is a prohibition imposed by the statute from taking cognizance. Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in Section 197 of the Code, any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The offence alleged to have been committed must have something to do or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is as offence; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds that is 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 possible 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 to 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 matter of jurisdiction delay is no ground. I am therefore not at all impressed by the argument that the officers are guilty of the latches and petition is filed at a very late stage when the case was ripe for hearing.

29. The issue also came for consideration before Supreme Court in Case of Rizwan Ahmed Javed Shaikh and Ors. v. Jammal Patel and Ors. of the Judgment it is observed:

"The real test to be applied to attract the act which is done by a public office and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty not his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purported to be performed the public officer would be protected."

30. Persons indulging in smuggling activities are many times having influence with the higher ups. The duty to catch hold of them to take them in custody along with seized goods is not an easy task. They are required to be immediately interrogated in order to find out their connection with others who are not on the scene. In the present case, I.P. Gaur was a Senior Security officer of Air India. The modus operandi indicated by the statements of the two accused shows that even on earlier occasions in similar fashion consignments were received from different Air Lines from different places and were successfully removed to the residence of Mr. Gaur on his instructions. On this occasion the persons were caught red handed. Their interrogation lead to the arrest of Mr. Gaur. In such a situation, there is always possibility of the officers being coerced by the gang members which suffers loss. Their attempts would be to see that the officers does not act against their interest. The legislature has therefore stopped in by providing the necessity of sanction before taking of cognizance by the Court of any such complaint.

31. In the case of Gostao Fernandes v. State at the instance of D.S.P. CBI, Bombay, . It is held that Custom Officer are entitled for protection from criminal prosecution under Section 155 r/w. 106 of Customs Act. The appellant in that case was on official duty as preventive Officer. 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. It 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 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 bands 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 Custom 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 mighty under-world of smugglers; unarmed and single-handedly. And seel he succeeded after hot chase on his motorcycle-smuggler being in a car. The result was smuggling of gold worth Rs. 8 Crores was prevented. The reward? He has been made to face a prosecution under Section 302 of the IPC at the behest of the CBI, who is brought burriedly and for undisclosed reasons to investigate, inasmuch as in the scuffle which had taken place between the appellant official and the suspected smuggler, during the course of which a big size (dagger) carried by the run-away has used, the smuggler died, because of the injuries sustained at the hand of the appellant, who had as many as 22 injuries on his person.

32. The Supreme Court after detailed discussion of the facts and the legal position came to the conclusion that the prosecution which was for offences under Section 302 of IPC was liable to be quashed.

33. Supreme Court referred to earlier Judgment of Bhappa Sen v. Rampal Sen, 1981 (Supp.) SCC 12.

"It may be indicated here that in the case of Bhappa Singh v. Ram Pal Singh and Ors. [1981 (Supp.) SCC 12], the officials of the Customs and Excise Department raided a jewellery shop of the complainant and being attached, the said raiding party fired shots. The complainant lodged a complaint that the members of the raiding party had come to commit dacoity in the jewellery shop. Indicating the circumstances, this Court held that the raiding party had not gone to commit the dacoity but they had to open fire thereby injuring some person in the shop when they were resisted in the carrying of the raid peacefully and men of the raiding party were manhandled. The impugned order quashing the complaint against the raiding party was upheld by this Court on the basis of general prima facie impression even by noticing the perhaps the matter may have required further evidence before quashing. It will be appropriate to refer paragraph 7 hereunder:

"Even though what we have just stated is a general prima facie impression that we have formed at this stage on the materials available to us at present. It may not be possible to come to a conclusive finding about the falsity or otherwise of the complaint. But then we think that it would amount to giving a go-by to Section 108 of the Gold (Control) Act, if cases of this type are allowed to be pursued to their logical conclusion, i.e. to that of conviction 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 over looked Respondents were found indulging in smuggling and have been penalized or the very act for which they are being prosecuted. They have succeeded in protracting their prosecution by resorting to the tactics of filing of false and concocted complaint against the protectors of law who did (SIC) 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 service of Air India. By the time criminal cases against the 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 have suffered humiliation and mental torture for no fault of theirs simply be case the learned Sessions Judge did not apply mind to the facts of the case and the law laid down in clear as unambiguous terms by the Apex Court. Two of the officers have already retired and others are on the verge. They must have suffered in service by loss or at least delay in promotion.

35. This is therefore a case in which the order of the learned Sessions Judge has resulted in serious miscarriage of justice. The complaints which deserved to be thrown over board at the threshold have been entertained and cases are committed to Sessions Court. This has not only caused serious injustice to the petitioners but has infact helped the respondents in delaying their proceedings for a serious charge of smuggling huge gold. If such complaints are entertained by the Courts so lightly, the necessary consequence would be that the moral of like minded officers of integrity and honesty in the department would be adversely affected and the juniors in rank would develop a feeling, why touch the influential and take risk of even losing job. I am therefore convinced that this is a fit case in which the High Court must exercise its inherent jurisdiction and powers to secure ends of justice.

36. Both petitions are therefore allowed. The Impugned order and rejecting the discharge applications passed by the learned Sessions Judge on 29.1.2002 is quashed and set aside. The Petitioners/accused in Sessions Case No. 889 of 1987 and 890 of 1987 are discharged. Rule is made absolute.