Delhi High Court
Brij Bhushan vs State & Anr. on 22 March, 2010
Author: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve : 19.03.2010
Date of Decision : 22.03.2010
+ Crl.M.C. 2344/2004
BRIJ BHUSHAN ..... Petitioner
Through: Mr. PP Malhotra, ASG with
Mr.Satish Aggarwala and Ms.Pooja
Bhaskar, Advcates
VERSUS
STATE AND ANR. ..... Respondents
Through:Mr. Navin Sharma, APP for State
with Inspector Puran Chand, P.S.
Shalimar Bagh
Mr.Ankur Goel, Advocate for R-2
WITH
Crl.M.C. 354/2005
VIKAS THUKRAL @ VICKY & ORS. ..... Petitioners
Through: Mr. Ankur Goel, Adv.
VERSUS
STATE & ANR. ..... Respondents
Through: Mr. Navin Sharma, APP for State
with Inspector Puran Chand, P.S.
Shalimar Bagh
Mr. PP Malhotra, ASG with
Mr.Satish Aggarwala and Ms.Pooja
Bhaskar, Advcates for R-2
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed Yes
to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
: MOOL CHAND GARG, J.
1. This common order shall dispose of the aforesaid two petitions filed
under Section 482 Cr.P.C. read with Article 226 of the Constitution of
India registered as Crl.M.C.No. 2344/2004 and Crl.M.C.No.354/2005
respectively, both arising out of the same incident which occurred around
the midnight of 31.8.2000 /01.09.2000, seeking quashing of:
(i) FIR bearing No. 628/2000 under Section 302/307 IPC registered at
P.S. Shalimar Bagh against Shri Brij Bhushan the petitioner in
Crl.M.C. No. 2344/2004 (hereinafter referred to as the Custom
Officer) and
(ii) FIR bearing No. 295/2000 under Sections
186/353/332/364/365/506/34 IPC read with Section 27 of the
Arms Act registered at P.S. Karol Bagh New Delhi against Shri
Vikas Thukral and others (hereinafter referred to as Thukrals)
petitioners in Crl.M.C. No. 354/2005 at the instance of the Custom
Officer as well as the proceedings arising therefrom respectively.
2. Brief facts, giving rise to filing of FIR No. 628/2000 registered at the
instance of Shri Vikas Thukral are:
(i) That on 31.08.2000 at about 9.30 - 10.00 PM, Vikas Thukral was
getting a truck unloaded consisting of plastic wheel covers with
valid invoices and challans when the Custom Officer posing
himself an Inspector (Customs) approached him and stated that he
had the information that the containers mounted on the truck were
containing smuggled goods. Despite Vikas Thukral informing the
Custom Officer that the goods being unloaded were plastic wheel
covers, showing invoices and challans in respect thereof and at his
instance having also opened about 20 boxes in random which
contained plastic wheel covers, the Custom Officer kept on
intervening and asked Vikas Thukral to call his father and some
other elder person from his house. At this Shri Vikas called his
father who came along with other persons who are petitioners in
Crl.M.C. No. 354/2005 as also along with Subhash Rana (the
deceased) at the go-down. They also talked to the Custom Officer
who expressed displeasure with intent to extract some illegal
gratification at which some altercation took place between them.
(ii) That at this Thukrals got suspicious and asked for the correct
identity of the Custom Officer who disclosed his identity as a
Custom Officer and also stated that his residence was in Pitampura
and asked Thukrals to accompany him for settling the matter. At
this Thukrals along with Custom Officer boarded in two vehicles as
custom officer was not having any vehicle. On the way to
Pitampura the Custom Officer is stated to have asked Thukrals to
stop the car on the pretext of urination and after going ahead a
little, he took out a pistol from pocket of his pant and fired number
of shots. One of the bullet hit Mr. Subhash Rana whereas the others
saved themselves by hiding. The custom officer also took away
Maruti Zen Car No. DL 3CA 3096 of Vikas Thukral and fled from
the spot. That immediately after the incident Vikas Thukral
informed the PCR on No. 100 & narrated the story that the Custom
Officer had attacked by firing with his service pistol and seriously
injured Mr. Subhash Rana (now deceased) who was then taken to
Sarvodaya Hospital Pitampura. The PCR then informed the police
post Pitampura where DD No. 7A was recorded at 1.30 AM about
the firing of shots near H.No. 219, SU Block, Pitampura and the
assailant had fled after snatching the car. SI Raj Pal Singh reached
Sarvodaya Hospital and collected MLC No. 308 of Subhash Rana
who was declared unfit for statement. SI after doing the
preliminary investigation sent a rukka to the police station and
recommended registration of a case. Accordingly, FIR No.
628/2000 under Section 307 was registered against custom officer at
PS Shalimar Bagh (subject matter of Cr.M.C. 2344/2004), cross case.
The injured Subhash Rana was then referred to RML where he
succumbed to his injuries and thereafter on receiving the
information of his death Section 302 was added.
3. Therafter, after completion of investigation challan was filed against the
Custom Officer alleging commission of offences under Section 302/307
IPC. The Magistrate took cognizance and issued summons to the Custom
Officer. The custom officer without appearing before the Magistrate in
person filed a petition under Section 245(2) Cr.P.C. which was entertained
but was dismissed later. He filed a petition before this court which was
disposed of by Justice J.D.Kapoor (Retd.) by remanding the matter for
fresh decision on the application. The said application was also dismissed
vide impugned order. It may be observed here that till now the petitioner
has not appeared before the Metropolitan Magistrate concerned
personally despite issuance of non bailable warrants against him, which
was later on recalled after the arrest of the custom officer, which was
stayed by this court.
4. On the other hand, in FIR No. 295/2000 registered at the instance of
custom officer it has been submitted:
(a) That the complainant was posted as inspector in Customs
Preventive branch, Delhi at the relevant time and was engaged in
surveillance duty in the area of Pusa Road. On the night of
31.08.2000, when he was coming back from his office he detected
some suspicious goods being unloaded from two trucks. He then
immediately informed his senior officer who asked him to keep the
surveillance of the same. The petitioner then met one Vicky
Thukral author of FIR No. 628/2000. He also disclosed his identity
and asked for the documents pertaining to the goods in question.
Then Vicky Thukral stated to him that he will call his father who
would only explain about the papers/documents pertaining to the
goods. Then Ashok Thukral along with his muscleman reached at
the spot and some altercations took between them relating to
goods. Thukrals were armed with deadly weapons.
(b) That thereafter Thukrals started beating him mercilessly and
huddled him in the car at gun point. It is also submitted that even
after beating him they took him along and snatched all his personal
belongings. He then was taken in the car which at one point of
time was stopped near the Ring Road Punjab Kesari and was then
further taken to Pitampura where he requested them for urination
and due to light frisking of petitioner they could not trace his
German Pistol and on seeing nobody around to save his life he
fired and due to which they all ran away and custom officer
managed to escape.
(c) It has been alleged that in this manner Thukrals committed offences
under Section 186 IPC by obstructing the Custom officer in
discharge of his duties and it is on these facts FIR No. 295/2000 was
lodged by the Customs Officer against Thurkrals. After the challan
was filed, necessary sanction under Section 195 Cr.P.C. was also
obtained. The Ld. Magistrate took the cognizance of the matter
against the accused persons and the trial has already started. It is
also the case of the custom officer that later it was revealed that
Ashok Kumar Thukral, Vicky Thukral and Subash Rana are all
history sheeters as per the record of the Police.
(d) After summons were issued to Thukrals they have approached this
Court and proceedings have been stayed in Crl.M.C. No. 354/2005
vide orders dated 27.09.2004 which is common in both the cases.
5. At this juncture, it will also be appropriate to take note of the allegations
made in the FIR by both the parties. In FIR No. 628/2000 Vikas Thukral
who is the author of the FIR has stated:
―that I live at the above address with my parents. And at
Arya Samaj road, Karol Bagh My father runs a shop of car
accessories and myself also work with my father. We have
a godown at 5, Pusa Road. Yesterday on dated 31.08.2001 I
was getting unloaded the goods at about 11.00 O'clock. A
person came to godown and asked that I am Brij Bhushan,
Custom Inspector. I have an information that the truck
have wrong goods, get it checked when I got it checked
then asked that call some responsible person. I telephoned
my uncle, so my father Ashok Kumar Thukral and
Subhash Chopra and Subhash Rana who both are my
uncles and work at Jagdish Thukral my uncle's garment
shop at Gandhi Nagar and my uncle Jagdish Thukral who
lives in SU-219, Pitampura all of them came to the godown
and talked to the Brij Bhushan, Custom Inspector and we
all had beaten him. After beating some time we asked Brij
Bhushan that where do you live: He said I live in
Pitampura. My uncle from there only went to Pitampura in
any other's vehicle. My father, Subhash Chopra and
Subhash Rana made sit Brij Bhushan into their vehicle.
Custom officer did not had vehicle. I also followed them
along with my two servants in my vehicle when we
reached to the Punjab Kesri, Ringh Road then Subhash
Rana stopped the vehicle there. So from my vehicle my
servants Anil Kumar, Sanjay Kumar got down and sat in
the left and right side of Custom Inspector Brij Bhushan
and then we proceeded for Pitampura, when the time was
about 1.00 AM night reached at AP Block, Pitampura.
Custom Inspector Brij Bhushan got stopped the vehicle for
urinating and went a little far from the vehicle and pulled
out pistol from his pant's pocket and fired a few shots on
us and one bullet hit in Subhash Rana's belli. We all hide
ourselves and Brij Bhushan, Custom Inspector took my
Maruti Zen car No. DL3C A 3096 and fled from the spot. I
telephoned on 100 No. that Custom Inspector Brij Bhushan
have done a life taking assault on us and have hit the
bullet in Subhash Rana's belli so we have admitted
Subhash Rana in Sarvodaya Hospital, Pitampura. Legal
action be taken. ―
6. From the aforesaid, it is apparent that Thukrals admits that the custom
officer showed his identity card, thereafter they gave him beatings and
made him to sit in the car in which they took him to Pitampura where the
incident of firing has taken place.
7. The custom officer in his FIR No. 295/2000 has made the following
allegations:
―that yesterday, at about 11.45 PM dated 31.08.2000 when I
left my office from New Customs House, IGI Airport for
going home. At about 12.15 at night I reached to Pusa
Road and turned towards Satbhrawan School than on the
right side of the road I saw two trucks unloading the
goods. On suspicion I stopped and observed from the
packing that the goods seems to be imported. Regarding
this I immediately informed my Superintendent
(Preventive) Shri Nand Lal on his Mobile No. 9810184229
from my mobile No. 9810279614 and apprised him about
situation by calling, who directed me to keep on the
surveillance of goods and godown when I went near to the
trucks to see the goods then a boy present there who was
told Vicky, asked me, who are you and what do you want?
Then I told him that I am a Custom Officer and I asked
him about the documents pertaining to the goods. On this,
he old that I am calling my father who will tell you about
them. So at about half an hour later four persons came and
one out of them told his name Ashok Thukral and asked
me who are you? I showed him my I. Card and
introduced and asked about the documents pertaining to
the goods then they started abusing and Ashok told me,
you do not know me well, I will show you the documents
right now. Thereafter, these people started beating me
with kicks and punches and have beaten me brutally so I
sat on foot path. After they started talking together. Then
a person out of them to whom Vicky was calling Jagdish
Uncle came to me and caught my collar by showing a
revolver told me that you stand up and sit up in the car
quietly and he and a second person who had worn a white
coloured pathani suit caught and thrust me in their
vehicle. Under coercion I sat in their vehicle and they kept
on threatening me that if you will not obey us then we will
shoot you with bullet. They kept me in vehicle and
proceeded through Anand Parbat, Keshav Puram via Ring
Road reached to Pitampura. During this time the fourth
man hwo had beard of ‗JAT' style kept me threatening by
showing second pistol and the pathani suit person was
driving the vehicle and they were talking of killing me. So
they were calling to the pathani suit man by the name of
Subhash Chopra. After this, in the same vehicle they
carried me ahead of Pitampura, T.V. Tower. I asked them
to urinate. On this, Ashok Thukral who was sitting to the
side seat of driver threatening me and asked to keep sitting
and mouth shut. Thereafter, at a short distance they
stopped the vehicle at a secluded place and got down me
and started talking together that this place is fit for. So,
Subhash Chopra who had the revolver in his hand asked
me to put off my shirt and under coercion I put off my
shirt and then they asked me to bend down so I felt that
they will shot me dead. Therefore, to save my life and to
made them frightened I fired two shots and ran towards
the vehicle and while running fired shots from my service
pistol which is issued to me from my Department and
started their Zen car and ran away from there. So via
Shalimar Bag, Azadpur, Model Town and turned towards
Mukherjee Nagar where you intercepted me and I told you
the whole story.
You brought me to hospital. So all these people
have collectively deter me to discharge my Government
duty, beaten me and abducted me on gun point, confined
me in vehicle, threatened me to kill. Against all these the
legal action be taken. Heard the statement and it is
correct.‖
8. A bare reading of that FIR goes to show that the allegation made by the
petitioner that his personal belongings were snatched does not find
mention in the FIR. There is also no mention that his pant also had blood
stains. There is no explanation as to wherefrom his car reached at
Pitampura which has been taken into possession by the Police officials of
Shalimar Bagh on 01.09.2000 itself. There is no explanation as to why the
FIR bearing No. 295/2000 has been registered by the Police around 7.30
AM on 01.09.2000 whereas the incident took place at about 1.00 AM in the
morning of 01.09.2000. It is also a matter of record that petitioner, despite
issuance of NBWs and rejection of his anticipatory bail application, has
not surrendered before the Court and has been approaching this Court by
filing one petition or the other to evade his arrest.
9. Both the sides have sought quashing of the FIR instituted against both of
them for different reasons.
10. According to Thukrals the FIR bearing No. 295/2000 registered against
them is liable to be quashed, inter alia, on the following amongst other
grounds.
I. The FIR has been registered at 7:30 a.m. and is an
afterthought. No offence whatsoever has been
made out against Thukrals in view of the fact that
neither they obstructed nor deterred the Custom
Officer from discharging his lawful duty nor he
was kidnapped or abducted nor he was threatened
to be killed by Thukrals. It is stated that the
aforesaid FIR was got registered after the
deliberations and concoction after 6 to 7 hours of
the incident.
II. The Custom Officer did not show his current
identity card to Thukrals in spite of the request
made by them to him and the identity card showed
by the custom officer was not a valid card as on
31.08.2000. The act of custom officer in not
showing his valid identity card to Vikas Thukral
created a doubt in the minds of Thukrals as to
whether the custom officer was actually a Customs
Officer or not, as he was neither in the uniform nor
was carrying a valid identity card and moreover
was heavily drunk. Inspite of all this, Thukrals
accompanied him to Pitampura for the settlement
which custom officer wanted.
III. The bona fides of Thukrals becomes clear from the
fact that without verifying the fact as to whether
the custom officer was armed with any weapons or
not they just took him along with them in another
car.
IV. The pistol and revolver shown to have recovered
by the police, from the residence of Jagdhish
Thukral is nothing but a concocted story.
However, it is pertinent to mention here that the
Subhash Chopra is in possession of a legal and
valid licence.
V. The custom officer was sitting at the rear seat with
Mr. Subhash Rana and Subhash Copra was sitting
at the front seat and the car was being driven by
Ashok Thukral. The custom officer, if wanted,
could have jumped out of the car any time
anywhere at the crossing. Thukrals even stopped
the car on the request of the custom officer and the
custom officer was allowed to go and urinate
without suspecting him.
VI. The act of the custom officer in murdering Subhash
Rana was voluntarily and intentional on his part
and was not in any circumstances a part of self
defence as alleged. The custom officer was neither
kidnapped nor he was abducted by Thukrals as
alleged.
VII. Had there been a case of kidnapping by Thukrals,
along with deceased Subhash Rana they would
have never allowed custom officer to keep his
revolver with him which he used on the way and
killed Subhash Rana.
VIII. From the FIR which was got registered by custom
officer, it is clear that the custom officer never
stated that Thukrals ever told him that they would
murder him and that had the victim i.e. the
deceased or Thukrals really kidnapped custom
officer, the custom officer should have fired shot in
the vehicle itself as he was sitting in the rear seat.
On the other hand, it is admitted that the custom
officer fired shots only from outside the vehicle and
that too at a point blank distance knowing fully
well that his act may even kill some other person
and thereafter he would escape in the darkness.
IX. As per the written submission of the custom officer
his personal belongings were taken away when he
was taken to Pitampura. If that had been so, there
is no reason for Thukals to leave the pistol with the
custom officr. This itself shows falacity in the story
of the custom officer as alleged. It is also an
admitted case that even after the first shot fired by
custom officer, Thukrals did not retaliate nor fired
at the custom officer as they were not in the
possession of any weapon.
X. It is further admitted fact that inspite of no
retaliation from Thukrals, the custom officer did
not stop but fired these shots from his revolver.
XI. The integrity of the custom officer again became
doubtful, due to the fact that even as per
instructions of the senior officials he did not keep a
watch on the articles being unloaded from the truck
but he himself without any provocation went to the
spot and told the Vikas Thukral as to where were
the documents and articles. In fact the custom
officer should have waited for his senior officials to
come to the spot.
XII. The story of custom officer that he was made to sit
in the vehicle and on the way on the pretext of
urinating he got down and then fired is also not
believable.
XIII. He should have lodged a FIR or complaint at an
earliest possible time at the nearest police Station,
instead, his act of running from the spot and
stopping his car at Mukherjee Nagar where he hit
the car at the picket and was caught by the Police
speaks volumes about the conduct of custom
officer and further strengthens the fact that the FIR
No. 295/2000 lodged by the custom officer was
lodged only with a view to escape from the law
and to create a false evidence as the FIR was lodged
belatedly after due consultation from his seniors
and in connivance with Police Officials.
XIV. The custom officer did not care either to report to
the local Police or his senior official before
commencing his journey from Karol Bagh to
Pitampura, which appears to be friendly and he
even did not make any efforts before commencing
his journey from Karol Bagh by informing the local
Police that the goods could be ceased by them so
that he could be in a position to register a case
against Thukrals, if the good were found to be
smuggled or contrabands. For the best reasons
known to the custom officer, he kept quiet and
accompanied Thukrals to Pitampura with a view to
confirm their house so that he could receive bribe
from them.
11. In so far as the Custom Officer is concerned, he seeks quashing of FIR No.
628/2000, on the following grounds:
I. No offence whatsoever is made out against the
custom officer in view of the facts of the case result
of investigation and report submitted by the police
in case FIR No. 295/2000 stating therein which goes
to show that the FIR lodged by him was supported
by unimpeachable evidence which the police had
accepted. In the said investigation report the Police
also give a finding that FIR No. 628/2000 lodged by
Vijay Kumar Thukral was false and did not make
out any offence.
II. The Magistrate could not have taken cognizance of
the offence allegedly committed by him without
there being a sanction obtained u/s 197 Cr.P.C.
which not only is applicable to the acts committed
by the public servant but also to such acts which
are committed by the public servant while
purporting to act in discharge of his official duty
which may be even beyond it but must have nexus
with his public duty and colour of office.
III. This is despite the fact that Thukrals also admit that
at the relevant time the custom officer was
discharging his official duties.
IV. Sec. 155 of the Customs Act, 1962 also provides an
embargo for initiating of any proceedings against
the Customs Inspector like the petitioner unless the
procedure prescribed in sub-sec.2 of Sec. 155 is
followed strictly. It has also not been done or
appreciated by the ld. Magistrate.
V. Two cases arise out of the same incident and the
findings in the case against the custom officer were
in his favour and the case lodged by the custom
officer vide FIR No. 295/2000 had been found to be
made out and on this basis of this complaint,
sanction under Section 195 Cr.P.C. was obtained
from the Superior competent authority of the
custom officer and charge sheet filed on which
cognizance had been taken and same has not been
challenged. The Police was obliged to take a
definite stand as to version of which party in cross
cases was correct, which it did. Both the versions
could not be correct and as such the cognizance of
the offence against the custom officer and
continuance of his prosecution was wholly illegal
and impermissible in law and on facts especially in
view of positive findings of the investigating
agency that the custom officer acted in exercise of
his right of private defence to save his life and
liberty which was in imminent danger and he had
no chance or opportunity to have access to public
authority for averting danger to his life as his
captors and abductors were not only determined to
carry the custom officer to an unknown place and
ultimately liquidate and dispose of his body but
had not reported the matter to local police and
instead had given bearing and were armed with
firearms and had carried him forcibly in their own
car flanked by their musclemen. There could not
be a better case of exercise of private defence.
12. The Custom Officer has also relied upon the following judgments to
support his pleas. The judgments cited by him on various points are:
On Section 155(1), Customs Act, 1962
i. Costao Fernandes Vs. State 1996 Crl.L.J. 1723 (SC)
ii. Bhappa Singh Vs. Rampal Singh and others 1982
Crl.L.J. 627 (SC Full Bench)
iii. Devender Dutt and others Vs. The State 1990
Crl.L.J. 177 (Delhi High Court)
On Section 197, Code of Criminal Procedure
i. Goondla Venkateswarlu Vs. State of A.P. and Anr.
(2008) 9 SCC 613, MANU/SC/7973/2008
ii. Sankaran Moitra Vs. Sadhna Das and Anr. AIR
2006 SC 1599
iii. Centre for public Interest Litigation and Anr. Vs.
Union of India (UOI) and Anr. AIR 2005 SC 4413
On Section 100, Indian Penal Code
i. Hanumantappa Bhimappa Dalavai and Anr. Vs.
State of Karnataka 2009 Crl.L.J. 3045
ii. Raj Pal & Ors. Vs. The State of Haryana 2006 (9)
SCC 678
13. Both the parties have filed written submissions. Thukrals have not
referred to any judgment. I have heard the arguments from both the sides
and gone through the written submissions filed by them.
14. To appreciate the real controversy, it may be relevant to take note of some
list of dates and events :
Date &Time Events
31.08.2000(11. 15pm) The custom officer left his office.
(11.45pm) Brij Bhushan saw suspicious activities of off
loading of imported goods at Pusa Road.
11.50 pm Brij Bhushan informed the Suptdt. Mr.
Nand Lal on which he was directed to keep
survillence.
11.56 pm Brij Bhushan again telephonically informed
his superior again who again given the
same direction.
01.09.2000(12.21 am) Vikas Thukral noticed the presence of Brij
Bhushan and asked him about his identity
and his reason for roaming there. Brij
Bhushan disclosed his identity as the
custom officer and asked about the papers
and documents of the said goods and
subsequently vikas called his father.
12.38 am For Persons came there namely Ashok
Thukral, Jagdish Thukral, Subhash Chopra
and Subhash Rana. On being informed by
Brij Bhushan that he was inspector for
customs, some altercations started between
them.
01.30 am D.D.Entry No. 7 was made at P.S.Pitampura
on the call of vikas thukral about the
incident.
01.35 am MLC of Subhash Rana prepared by
Sarvodaya Hospital Pitampura showing
bullet injuries.
02.30 am Brij Bhushan reached at P.S.Mukherjee
Nagar and intercepted where he narrated
the incident and surrendered his service
pistol, two magazines, 7 live cartridges.
03.30 am Police referred Brij Bhushan to Bara Hindu
Rao for medical examination and statement
was recorded by P.S.Mukherjee Nagar.
Around 3.30am FIR No.628/2000 was registered at
P.S.Shalimar Bagh u/s.307/302 IPC against
the custom officer.
5.45am D.D.No.5A was made at P.S.Karol Bagh.
6.00am Police officials from P.S.Karol Bagh reached
at Bara Hindu Rao and collected the
MLC/Revolver alongwith liscense.
7.30am FIR No. 295/2000 was registered at P.S.
Karol Bagh u/s.186/353/332/
364/375/56/34 IPC r/w S. 27 of Arms Act
against Ashok thukral and others.
15. From the aforesaid, it apparent that firing took place around 1 am in the
morning of 1.9.2000. The DD was registered at the instance of Vikas
Thukral at about 1.30 am at Police Station Pitampura. The injured namely
Subhash Rana having bullet injury was taken to the Sarvodaya Hospital
(Pitampura) and was admitted at 1.35 am and thereafter referred to RML
Hospital for further management at 2.45 AM.. Ultimately, the FIR with
respect to this incident was registered at 3.30 am. However, so far as
Customs officer is concerned, his complaint for the first time was
registered at 5.45 am at Police Station Karol Bagh vide DD No. 5A. It is
not understood as to why the custom official has not gone to the nearest
Police Station even if his version is to be admitted.
16. Admittedly, the Custom officer had a mobile number 9810279614 (airtel
connection). The last call made by him to his superior was at about 11.56
pm at mobile 9810184229 which is the telephone number of Nand Lal, the
Superintendent of Customs. However, what happened to that mobile
subsequently and as to why telephone calls could not be made by the
custom officer to his superior regarding the firing incident is not
explained. Even though there is mention of incoming and outgoing calls
on mobile of the custom officer bearing No. 9810279614 of which no
record/details has been produced by the Police. The custom officer has
also not explained as to whom these calls were made. It may be observed
here that Shri Nand Lal, Superintendent Customs, who has been
examined as a witness in case FIR No. 295/2000, has stated that he
received a call from Shri Brij Bhushan only at 4 AM regarding his
treatment at Bara Hindu Rao Hospital. This call has been received by him
after 11.56 pm. It is also surprising that there is no record available as to
what action has been taken by the Custom Department with regard to
seizure of goods which were allegedly smuggled by the Thukrals. In fact,
even if any entry was made in the records of the custom department about
this incident the same has also not been placed on record. There is also
nothing on record to show as to whether there is any show cause notice
was issued to the Thukhrals with respect to this incident. There is also no
mention of the truck number which was involved in this case. There is
also no explanation by the custom officer as to why he had gone to Pitam
Pura after the incident had taken place at Karol Bagh and as to how his car
reached at Pitampura which has been later on seized by Police Official of
P.S. Shalimar Bagh vide seizure memo dated 1.9.2000 in case FIR
No.628/2000 which has been registered against the custom official. This
give some credence to the version of Thukhrals that some scuffle also took
place on account of demand of bribe which ultimately resulted in the
firing incident.
17. In these circumstances, the following questions arise for consideration i.e.
a. Whether the Custom officer (petitioner in Crl. M.C.
2344/04) was discharging his official duties at the relevant
time?
b. Whether Thukrals caused any interference in the official
duties of the Custom Officer and beat him?
c. Whether there was any reasonable apprehension in the
mind of the custom officer regarding his personal safety
and that he can be eliminated by Thukrals which led to
the firing incident which resulted in causing fatal injury to
Subhash Rana?
d. Whether there was any demand of bribe by the custom
officer due to which altercation took place between him
and the accused persons?
e. Whether the custom officer was justified in firing shots
from service revolver causing death of Subhash Rana, if so,
whether he has not exceeded the right of self defence?
f. Whether firing of bullets from his service pistol by the
custom officer were in self defence and during the course
of discharging official duties?
g. Whether in this case prosecution of the custom officer
could not have been taken without sanction granted under
Section 197 Cr.P.C. and under Section 155 of the Customs
Act as alleged?
18. Insofar as the first question is concerned, even from the written
submission and the FIR lodged by the Thurkrals it stands established that
the Custom Officer had gone to check the truck from where goods were
being off loaded in discharge of his official duties. This fact is also verified
by Shri Nand Lal, the Superintendent Customs who has been examined
under Section 161 Cr.P.C. The factum of the custom officer being a
custom inspector and on duty also stands corroborated by record of his
mobile calls which he made to Nand Lal.
19. The second question relates to the applicability of bar under Section 197
Cr.P.C. read with Section 155 of the Customs Act, 1962. It is the case of the
Custom Officer that being a public servant he is protected by the aforesaid
provisions, hence cannot be prosecuted without prior sanction from his
department. To answer the aforesaid question, it may be appropriate here
to take note of Section 197 Cr.P.C. and Section 155 of the Customs Act,
1962 which reads as under:
Section 197. Prosecution of Judges and public servants.--
(1) When any person who is or was a Judge or 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 take cognizance of such offence except
with the previous sanction--
(a) in the case of 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;
(b) 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 a State,
of the State Government:
1[Provided that where the alleged offence was committed
by a person referred to in clause (b) during the period
while a Proclamation issued under clause (1) of Article 356
of the Constitution was in force in a State, clause (b) will
apply as if for the expression ―State Government‖
occurring therein, the expression ―Central Government‖
were substituted.]
(2) No Court shall take cognizance of any offence alleged
to have been committed by any member of the Armed
Forces of the Union while acting or purporting to act in the
discharge of his official duty, except with the previous
sanction of the Central Government.
(3) The State Government may, by notification, direct that
the provisions of sub-section (2) shall apply to such class
or category of the members of the Forces charged with the
maintenance of public order as may be specified therein,
wherever they may be serving, and thereupon the
provisions of that sub-section will apply as if for the
expression ―Central Government‖ occurring therein, the
expression ―State Government‖ were substituted.
2[(3-A) Notwithstanding anything contained in sub-
section (3), no court shall take cognizance of any offence,
alleged to have been committed by any member of the
Forces charged with the maintenance of public order in a
State while acting or purporting to act in the discharge of
his official duty during the period while a Proclamation
issued under clause (1) of Article 356 of the Constitution
was in force therein, except with the previous sanction of
the Central Government.
(3-B) Notwithstanding anything to the contrary contained
in this Code or any other law, it is hereby declared that any
sanction accorded by the State Government or any
cognizance taken by a court upon such sanction, during
the period commencing on the 20th day of August, 1991
and ending with the date immediately preceding the date
on which the Code of Criminal Procedure (Amendment)
Act, 1991, receives the assent of the President, with respect
to an offence alleged to have been committed during the
period while a Proclamation issued under clause (1) of
Article 356 of the Constitution was in force in the State,
shall be invalid and it shall be competent for the Central
Government in such matter to accord sanction and for the
court to take cognizance thereon.]
(4) The Central Government or the State Government, as
the case may be, may determine the person by whom, the
manner in which, and the offence or offences for which,
the prosecution of such Judge, Magistrate or public servant
is to be conducted, and may specify the Court before
which the trial is to be held.
Section 155 of the Customs Act. Protection of action taken
under the Act.--(1) No suit, prosecution or other legal
proceeding 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 proceeding 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 proceeding and of the
cause thereof, or after the expiration of three months from
the accrual of such cause.
20. The custom officer has relied upon number of judgments as referred to
above. I have gone through the judgments and find that the facts in those
judgments are entirely different and do not apply to the facts of this case.
Even with respect to the legal position it can be inferred that the law with
regard to necessitating of sanction under Section 197 Cr.P.C. is
circumscribed with the rider that if the act committed by the public officer
has no nexus, reasonable connection or relevance to the official act or duty
of such public servant and is otherwise illegal, unlawful or in the nature of
an offence, he cannot get shelter under Section 197 of the Code. In other
words, protection afforded by the said section is qualified and conditional.
Reference can be made to Shankaran Moitra Vs. Sadhna Das and Anr. AIR
2006 SC 1599.
21. The issue of sanction has also been dealt by the Apex Court under similar
factual position in the case of Bakshish Singh Brar Vs. Gurmej Kaur & Anr.
(1987) 4 SCC 663, wherein it was held:
6.In the instant case, it is alleged that grievous
injuries were inflicted upon the complainant and as a
result of injuries one of the alleged accused had died.
The question is while investigating and performing
his duties as a police officer was it necessary for the
petitioner to conduct himself in such a manner
which would result in such consequences. It is
necessary to protect the public servants in the
discharge of their duties. They must be made
immune from being harassed in criminal proceedings
and prosecution, that is the rationale behind Section
196 and Section 197 of the CrPC. But it is equally
important to emphasise that rights of the citizens
should be protected and no excesses should be
permitted. "Encounter death" has become too
common. In the facts and circumstance of each case
protection of public officers and public servants
functioning in discharge of official duties and
protection of private citizens have to be balanced by
finding out as to what extent and how far is a public
servant working in discharge of his duties or
purported discharge of his duties, and whether the
public servant has exceeded his limit. It is true that
Section 196 states that no cognizance can be taken
and even after cognizance having been taken if facts
come to light that the acts complained of were done
in the discharge of the official duties then the trial
may have to be stayed unless sanction is obtained.
But at the same time it has to be emphasised
that criminal trials should not be stayed in all
cases at the preliminary stage because that will
cause great damage to the evidence
7.In that view of the matter we are of the opinion
that the order passed by the learned Additional
Sessions Judge, Kapurthala, in the facts of this case,
was proper and the High Court was right in not
interfering with the same. We, therefore, dismiss this
petition.
8.We, however, direct that the trial should proceed
as expeditiously as possible. We further record that if
necessary the question of sanction under Section
197 of the CrPC may be agitated after some evidence
have been noted by the learned Additional Sessions
Judge.
22. Similarly, the Apex Court in its later judgment delivered in the case of
R.K. Pradhan Vs. State of Sikkim (2001) 6 SCC 704 held that the question of
sanction under Section 197 of the Code can be raised any time after the
cognizance, may be immediately after the cognizance or framing of charge
or even at the time of conclusion of trial and after conviction as well. But
there may be certain cases, where it may not be possible to decide
question effectively without giving opportunity to the defence to establish
that what he did was in discharge of official duty. Therefore, the question
should be left open to be decided in the main judgment which may be
delivered upon conclusion of the trial.
23. In the facts of this case, as noted above, there are many contradictions in
the story of the custom officer and the fact of firing four bullets by him
makes his role suspicious. The question whether the act of the custom
officer was in discharge of the official duty and under the apprehension of
death or done by him while exercising his right of private defence will
only be answered during the course of trial and therefore, the issue of
sanction cannot be decided without recording evidence.
24. Insofar as the question of private defence of the custom officer is
concerned, the question as to whether such defence permits the officer
even to cause death of another by indiscriminate fire would again be a
question of appreciating the evidence to find as to whether the action of
custom officer is covered by any of the defences mentioned under Section
100 of the IPC. It may be observed here that in the case of Virsa Singh Vs.
State of Punjab, AIR 1958 SC 465 while dealing with the similar situation it
has been held by Hon'ble Supreme Court that even if anybody causes any
injury which is likely to cause death even without intention to cause death
but if the death is caused then assailant would be guilty of committing
murder.
25. In the case of Raj Pal and Ors. Vs. The State of Haryana 2006 (9) SCC 678
relied upon by the custom officer, the Hon'ble Supreme Court has held:-
A plea of right of private defence cannot be based on surmises
and speculation. While considering whether the right of
private defence is available to an accused, it is not relevant
whether he may have a chance to inflict severe and mortal
injury on the aggressor. In order to find whether the right of
private defence is available to an accused, the entire incident
must be examined with care and viewed in its proper setting.
Section 97 deals with the subject-matter of right of private
defence. The plea of right of private defence comprises the
body or property (i) of the person exercising the right, or (ii) of
any other person; and the right may be exercised in the case of
any offence against the body, and in the case of offences of
theft, robbery, mischief or criminal trespass, and attempts at
such offences in relation to property. Section 99 lays down the
limits of the right of private defence. Sections 96 and 98 give a
right of private defence against certain offences and acts. The
right given under Sections 96 to 98 and 100 to 106 is controlled
by Section 99. To claim a right of private defence extending to
voluntary causing of death, the accused must show that there
were circumstances giving rise to reasonable grounds for
apprehending that either death or grievous hurt would be
caused to him. The burden is on the accused to show that he
had a right of private defence which extended to causing of
death. Sections 100 and 101 IPC define the limit and extent of
right of private defence.
Thus, the question as to whether the custom officer was justified in firing
bullets which resulted in the death of Subhash Rana in the facts of this
case would be a question to be gone into after the evidence is recorded.
26. As far as Section 155 of the Customs Act is concerned, it only speaks about
the protection of action taken under the Act. The learned MM while
passing order dated 08.04.2003 has referred to the aforesaid Section and
observed that:
10. ....―On bare perusal of the Section it is clear that the
word ANYTHING WHICH IS DONE OR INTENDED TO
BE DONE AND THAT TOO IN PERSUANCE OF THIS
ACT. Should be done in good faith. The Sub Clause (2) of
Section 155 of Custom Act also be read as ejusdem-
generisis with sub clause (1) as the word good faith has not
been mentioned in sub clause 2 of the Customs Act.
Therefore, in both sub clauses of Section 155 of the act in
order to bring the case within the preview of the thing
should have been done in pursuance of this Act and that
too in good faith. Ld. Counsel for the complainant has
clearly has stated that no proceedings under the Customs
Act have been initiated against the complainant and at this
stage it is not clear as to whether the thing as referred to in
Section 155 was done in pursuance of this Act or not.‖
27. The Learned MM has also discussed the law referred to on behalf of the
Custom Officer and has been further pleased to observe that:
19. From the aforesaid judgment which discussed on the
point of sanction under Section 197 Cr.P.C. corollary also
follows Section for 155 of Customs Act that the question of
sanction should be left upon to be decided in the main
judgment which may be delivered upon conclusion of the
trial. In the present matter the trial is yet to proceed and
the Trial Court is a Court of Sessions. Hence, the plea of
Ld. Counsel for the accused that the sanction under
Section 197 Cr.P.C. or under Section 155 of Customs Act
was not obtained is not tenable at this stage.
28. It may be also appropriate to take note of the earlier orders dated
14.07.2003 and 30.07.2003 passed by Ld. MM while taking cognizance and
disposing off the recall application which has been impugned by the
Custom Officer . The relevant observation made by Ld. MM in order
dated 14.07.2003 reads as under:
The accused after he fled away from the spot after
taking the vehicle of the complainant also lodged a report
before PS Karol Bagh on which the FIR No. 295/2000 was
also registered.
As per the charge sheet the accused has not yet
been arrested and his arrest has been deferred as the
accused was on duty and as per the accused he fired in self
defence. It was verified by the Police that accused was on
duty on that day.
This is the stage of cognizance and stage is too
mature to reach to the conclusion as to whether the
accused fired in self defence or firing was intentional one.
It is only on the ground that the accused has not been
arrested by the Police. To me the fact as to whether the
accused was acting in private defence or as to whether any
offence made out or not will be made seen by Ld. Sessions
Court which is competent to try the case under Section
302/307 IPC.
29. The observation made by Ld. MM while passing order dated 30.07.2003,
disposing of the recall application reads as under:
10. The Hon'ble High Court in that case held that even if
these facts are true, the case cannot proceed for want to
sanction under Section 197 Cr.P.C. But the Hon'ble
Supreme Court held as under:-
The question whether these acts were committed
and/ or whether 1st respondent acted in discharge
of his duties could not have been decided in this
summary fashion. This is the type of case where
the prosecution must be given an opportunity to
establish its case by evidence and an opportunity
given to the defence to establish that he had been
acting in the official course of performance of
duties and/ or whether examined during the
course of trial. In our view, in this case the
question or sanction should be in this case the
question of sanction should be left open to be
decided in the main judgment which may be
delivered upon conclusion of trial. (Para 11 of 2002
Crl.L.J. 3780)
11. Hence, in view of the observation cited above it is too
early stage to consider the point of sanction and since the
NBW has already been issued, I do not want to cancel the
same as no ground made out. Application, is therefore,
stands rejected.
30. Thus, after going through all the three orders passed by Ld. MM which
has been impugned by the Custom Officer, I do not find any infirmity in
the orders which has been passed after due application of mind and does
not require interference by this Court at this stage even when the charges
has not been framed by the Trial Court. The question with regard to
sanction, if any, can be looked into by the concerned Sessions Judge who
will try the matter.
31. It is well settled that where the right of private defence is pleaded, the
defence given must be reasonable and probable satisfying the cast that
harm caused by the accused was a necessary one. The burden of
establishing the plea of self-defence is on accused and has to be
discharged by him. In the facts of the present case where the Custom
Officer has fired the shorts in self-defence needs explanation inasmuch as
the plea raised by him that there was apprehension of death needs to be
proved. In the present case, it is an admitted fact that the Custom Officer
fired the shots towards the accused persons in (FIR No. 295/2000) more
than once and resulted in death of the deceased Subhash Rana. The case
of Custom Officer that accused persons were also carrying fire arms does
not seems to be true but on the other hand the story of the accused
persons that they never retaliate nor fired at the Custom Officer, as they
were not in possession of any weapon seems to be true. However the
veracity of two witnesses cited by prosecution in FIR No. 295/2000, can be
looked into a later stage during the time of trial. In this case, the weapon
which has been recovered from the house of Thurkrals is not the same of
which a reference has been made by the witness. Moreover, the weapon
which has been recovered from the house of Jagdish Thurkral was a
licensed revolver.
32. The last question which needs to be answered is in relation to FIR
No.628/2000 which has been filed against the Custom Officer but has
been taken as a shield of defence by complainants, who are accused in FIR
No. 295/2000. The defence raised by the Thukrals, petitioners in
Crl.M.C.354/2005, is that the altercation started between them and
Custom Officer was due to demand of bribe. It may be observed here that
even if it is presumed that the Custom Officer was demanding the bribe,
this does not give them any right to beat him which fact has been
admitted by the petitioners in FIR No. 628/2000 lodged by them. The
burden to prove that Custom Officer was demanding bribe is upon the
Thukrals. Therefore, the act of beating a public servant is definitely an
offence punishable under the code and petitioners cannot escape from
their guilt by narrating a concocted story.
33. Counsel appearing for the Government of NCT of Delhi has informed this
Court that they are not withdrawing the prosecution but has also not
granted sanction for prosecution. He submits that this may be decided by
the concerned Court as to whether there is a need for sanction or not.
34. Thus, in the facts and circumstances of the two petitions, I am of the
considered view that at this stage it would not be appropriate for this
Court to quash either of the proceedings. The question of sanction with
regard to acts of the custom officer can be gone into by the concerned
court after recording of evidence of the parties if the court feels that it is
not a case of exceeding self defence and the firing was done by the custom
officer so as to save himself and was necessary in discharge of his duties
the court can certainly make an observation in this regard and call upon
the State to answer the query as to whether they would like to consider
granting sanction or not. If such a query is raised and State decides to
grant sanction then appropriate orders can be passed by the court
concerned. However, if State decides not to grant sanction then
consequences will follow. However, if the court comes to the conclusion
that no sanction is required then court can pass appropriate orders.
35. In view of the aforesaid, both the petitions i.e. the petition filed by Brij
Bhushan, Custom Officer, and the petition filed by Thukrals viz. Vikas
Thukral and Others are dismissed with the following directions:-
(i) The Custom Officer, Brij Bhushan, will appear in the Court of MM
concerned on 8.4.2010, which is the date already fixed in the matter,
in a case arising out of FIR No. 628/2000.
(ii) The Customs Officer, however, will be released on bail at the time
of his arrest on furnishing a bail bond in the sum of Rs. 25,000/-
(rupees twenty five thousand only) with one surety in the like
amount in the peculiar facts of the case.
(iii) The Magistrate concerned will immediately refer the matter arising
out of FIR No. 628/2000 for transfer to the Principal District and
Sessions Judge, Tis Hazari on the same day. The learned Principal
District and Sessions Judge, Tis Hazari will transfer this matter to
the same Sessions Court where the case arising out of FIR No.
295/2000 is pending hearing.
(iv) The question as to whether sanction is required to be obtained or
not for prosecuting the Custom Officer, Brij Bhushan, under Section
197 Cr.P.C. or under Section 155 of the Customs Act shall be
decided by the Trial court i.e. the Court of Sessions after concluding
the evidence of the prosecution as well as the defence in terms of
the observation made by me in paragraph 34.
(v) Both the cases arising out of FIR No. 628/2000 and FIR No.
295/2000 shall be decided by the same Sessions Judge. A copy of
this judgment be sent to the concerned Courts for information and
compliance.
(vi) The petitioners in a case arising out of FIR No. 295/2000 shall
appear before the concerned Sessions Court on 8.4.2010 itself when
the court will proceed with the case from the stage it is pending
before the said court in accordance with law after awaiting transfer
of the case arising out of FIR No. 628/2000 in terms of the
directions given above and will try both the cases together.
(vii) Nothing stated herein shall cast any aspersion on the merits of the
case during the course of trial.
MOOL CHAND GARG, J.
MARCH 22, 2010/nm-ag
