JUDGMENT R.P. Yadav, J.
1. These are two petitions under Section 482 of the Code of Criminal Procedure (hereinafter called the Code) for quashing the charge-sheet dated 17.2.2003 (Annexure No. 2 to the petition) and the order dated 15.2.2005 (Annexure-7) passed by III Additional Chief Judicial Magistrate, Lucknow rejecting the objection/representation filed by the petitioners pursuant to the order passed by this Court on 18.1.2005 in Criminal Misc Case No. 557 of 2003 (Vivek Chaturverdi and Ors. v. State of U.P and Ors.) and Criminal Misc. Case No. 617 of 2003 (Jogindra Singh and Ors. v. State of U.P. and Ors. ), whereby the summoning order dated 15.3.2003 was quashed by this Court and the petitioners were given an opportunity to file a representation and the learned Magistrate was directed to pass appropriate orders thereon after deciding the question of requirement of sanction under Section 197 of the Code.
2. Criminal Misc Case No. No. 977 of 2005 has been filed by S/Shri Vivek Chaturvedi. D.P. Saxena and P.K. Katiyar, who were named in the F.I.R. of crime No. 14/2002 registered at police station Krishna Nagar, Lucknow in compliance of the direction of the learned Magistrate on 10.1.2002 passed on the application moved by opposite party No. 2 Shri R.K. Singh on 21.12.2001 in respect of occurrence dated 16.2.2001, whereas Criminal Misc. Case No. 978 of 2005 has been filed by S/Shri Jogindra Singh, C. Rajendran, P.K. Misra, Smt. Sanyogita Misra, Y.K. Chowdhary, A.K. Misra, Mohd. Tariq, S.K.S. Tomar, S.K. Srivastava, Raghuraj Singh, Gore Lal and Faridul Hasan, who were not named in the F.I.R. lodged in pursuance of the order passed by the learned Magistrate on 10.1.2002.
3. Common question of fact and law are involved in both the petitions, therefore, they have been heard together and are being disposed of by this common judgment.
4. This legal battle is between the officers of customs and central excise department working under the Government of India. The opposite party No. 2, R.K. Singh, who is the complainant and at whose prayer, the F.I.R. was lodged, was an Inspector, Central Excise and customs posted at Lucknow. He was placed under suspension by the order of the Additional Commissioner, Central Excise Lucknow on 7.3.2001 with effect from 17.2.2001. That order was revoked subsequently and he is now Superintendent of Customs and Central Excise. He will be called as the complainant hereinafter. Petitioners who are arraigned as accused persons are the officers of the said department. Some of them are the officers of the Indian Revenue Service.
5. In order to appreciate the controversy involved, it would be necessary to look into the following facts lying in the background. The officers of the Directorate of Intelligence and investigation (For short DRI) intercepted two consignments of cargo in two containers at Nhava Sheva Mumbai, which were cleared by customs authorities at ICD Hyderabad. The said consignments were being exported in the name of two firms, namely, M/s Sri Vishnu Merchants, Plot No. 70, Soujanya Cooperative Housing Society, New Bowenpally, Secunderabad and M/s Pashupathi Traders plot No. 4, Sri Mansion Building, Jyothi Colony, Secunderabad. The said two consignments were examined by the officers of DRI on 9.2.2001. As per the documents of export, the goods contained therein were cleared from ICD Sanathnagar, Hyderabad. The goods were cosigned to M/s Silver line Trading Company LLC, UAE and the description of the gods was "Naproxen" ( a bulk drug). The said goods were into 235 drums, 45 of which were of hard board and the remaining were PBC drums. Labels found on the drums read as follows: Naproxen, (commercial grade), Batch No. NAP 10708, manufacturing- December, 2000, Expiry date- November, 2005, net weight: 50 Kg.
6. Since some fraud was suspected in consignment of the said goods, the officers of the DRI, after observing necessary formalities, drew representative samples, which were sent to the chemical examiner, Grade-1 Nhava Sheva, Jawahar Customs House on 10.1.2001. The said samples were tested and the material therein was found to be not "Neproxen" but inorganic chemical 'calcium carbonate' (commonly known as chalk powder/marble powder). Total declared value of consignments of goods were Rs. 3,19,97,306. The goods were seized under the provisions of Customs Act, 1962, on 15.1.2001. The investigation revealed that one Rajnish Agrawal of Hyderabad was the ring leader and Shri Sanjay Agarwal, brother of Shri Rajnish Agarwal, Rajesh Jain and Shri Naresh Jain of Dubai and Shri Vimal Kumar Jain brother of Sri Narcsh Jain residing at Delhi and Shri Manoj Kumar Jain of Hydrabad were involved in this scam. Shri Rajnish Agarwal was knowingly and actively concerned with the export of chalk powder cleared from ICD Hydrabad on 3.1.2001 by mis-declaring the same as bulk drug namely Naproxen. The aforesaid consignment was being exported fraudulently to claim the customs duty exemption under DEPB Scheme. It was also found during the course of investigation that the bogus consignment was exported as per predetermined strategy and active connivance of Shri Naresh Jain and Shri Rajesh Jain who were accepting the same and were to send money meant for compensatory Hawala payments through banking channels in the guise of export proceeds. Shri Rajesh Agarwal was instrumental in procuring chalk powder from M/s Techno Minerals and getting the same packed and labelled at M/s Apar Pharma. Shri Rajnish Agarwal took one Shri Janak Prasad Sharma to Shri V.K. Singh (C.H.S) Customs House Agent and gave instructions to Shri Janak Prasad Sharma to sign the documents for export. On reference being given by Sri Ravindra Rastogi his old friend he contacted Shri R.K. Singh opposite party No. 2 Inspector of Central Excise at Lucknow and sought his help to clear hurdles at Nhava Sheva port for the consignments intercepted by DRI, exported in the name of M/s Shri Vishnu Merchants and M/s Pashupathi Traders from ICD, Hyderabad.
7. In his statement Shri Bimal Kumar Jain (a copy of which has been annexed as Annexure No. 12 to the affidavit of the petitioner No. 1 Vikvek Chaturvedi) stated that he sought help of opposite party No. 2 Shri R.K. Singh complainant, who was introduced to him by his close friend Shri Ravindra Rastogi. He managed his air trip from Lucknow to Mumbai and back and made necessary arrangements for his stay in Chanchal Hotel at Paharganj Delhi and met all his expenses of journey and stay etc. Shri R.K. Singh opposite party No. 2 on coming back from Mumbai told him that he could not be successful in getting the hurdles cleared for consignments. He had also advised that Shri Janak Prasad Sharma, who was involved in this scam be sent to Nepal, so that truth may not come out. It is alleged that amount received from export of the said goods was actually used for hawala payments benefiting the persons involved doubly one by making hawala payments and other by getting benefit under the D.P.E.D scheme from the Government and thereby cheating the Government of a huge sum of money.
8. Since the name of Shri R.K. Singh opposite party No. 2 figured in the statement of Sri Bimal Kumar Jain a notice was issued to him for the purpose of inquiry/investigation by the officers of DRI fixing 191.2001 for his appearance, which was admittedly served on him, but he did not appear before the D.R.I. officers and after receiving the notice on 17.1.2001, he sent a reply on 18.1.2001 enquiring about the purpose for requiring his presence. He requested for supply of queries also. It is stated in his counter that in the meantime, he came to know that export consignments cleared for exportation after proper examination and legal formalities at ICD customs Hyderabad by Hyderabad customs authorities had been detained and seized by Hyderabad DRI at Mumbai and therefore, he with a view to cooperate with the inquiry sent suo moto statement in the letter form to the Additional Director General of DRI New Delhi on 01.02.2001. He also attached a blank signed paper for the use of DRI as per their design. He denies any summons or notice for 14.2.2001. However, according to him in the morning of 16.2.2001 at about 6.30 a.m. the entire DRI staff of regional unit Lucknow with two officers of DRI New Delhi, namely, D.P. Saxena and P.K. Katiyar (Petitioners 2 and 3) came to his residence, took him out of house saying that he was to go to local office of DRI Lucknow only buy by force and deceitful means took him to Delhi via Aligarh where a sum of Rs. 4,00/- was snatched from his pocket by Shri P.K. Katiyar for filling the fuel in the vehicle, wherein he was being carried away to DRI office Delhi and reached there at about 6.30 p.m. He was then served with summons for inquiry/investigation.
9. It is alleged by the complainant, opposite party No. 2 that at Delhi he was given mental torture and inhuman treatment by DRI officers of New Delhi, who managed a dictated statement from him. He was produced before the Additional Chief Metropolitan Magistrate, Delhi next day i.e. 17.2.2001 wherefrom he was sent to the judicial custody with a direction to produce him at Hyderabad court. Thereafter he was produced before Economic Offences Court, Hyderabad on 23.2.2001 and was granted bail on 1.3.200. It is also alleged by Shri R.K. Singh opposite party No. 2 that he was falsely implicated in the said fraudulent scam of consignment due to departmental rivalry.
10. It is also his case that in his absence, his father Shri Lalit Mohan Singh, who is retired DIG (police) has made complaints to the authorities of D.R.I, and police also but no action was taken. He on being released on 17.6.2001 from the custody made complaints to police and ultimately moved an application on 22.12.2001 under Section 156(3) of Code to the Chief Judicial Magistrate, Lucknow, who after calling for a report from the police passed an order on 10.1.2001 directing the police to register and investigate the case. It was on the basis of this order that a case was registered at crime No. 14 of 2002 by the police of Police Station Krishnagar, Lucknow on 15.1.2001 and after due investigation a charge-sheet was submitted against all the petitioners of the said two petitions. Opposite party No. 2 asserts that charge-sheet has been submitted on the basis of sufficient material and there is no legal infirmity in the order passed by the learned Magistrate rejecting the representation of the petitioners.
11. It would be relevant to mention that when the case was registered by the police and the investigation was in progress, the petitioner Shri Vivek Chaturvedi filed a petition under Section 482 Cr.P.C. being criminal misc. case No. 997 of 2002 before this Hon'ble Court, wherein an interim order was passed staying the operation of order dated 10.01.2001 if the FIR had not been registered and the investigation taken. It was also directed that the petitioner No. 1 Shri Vivek Chaturvedi was free to place his own version before the investigating agency if the investigation was in progress. Since the investigation has already commenced with the registration of the FIR on 15.1.2001 and this order was passed on 28.6.2001, it was of no consequence. Then Shri Vivek Chaturvedi the petitioner No. 1 filed a writ petition No. 1993 (M/B) of 2002 seeking arrest of stay, which was granted and his arrest was stayed with a condition that he shall cooperate with the investigation. However, after investigation, the charge-sheet as said above was submitted by the police of Police station Krishna Nagar, Lucknow on 12.2.2003.
12. Notice may also be taken of the fact that opposite party No. 2 Shri R.K. Singh (complainant) alongwith 15 others was given a notice under the provisions of Customs Act, 1962 by Commissioner, Customs and Central Excise, Hyderabad and he (the opposite party No. 2 Shri R.K. Singh) was fined Rs. Twenty lacs under Section 114(1) of the said Act. He filed an appeal against the said order, which is pending. Shri R.K. Sngh, opposite party No. 2 was also detained under COFEPOSA by Andhra Pradesh Government but his detention was not approved by the Advisory Board. Therefore, he was released from the custody on 15/17.6.2001. In the representation made by him he admitted his visit to Mumbai on the said dale but maintained that it was for his personal work and denied the allegation that he had gone there for facilitating the exportation of mis-declared goods. He was also prosecuted under Section 135 of the Customs Act, but was discharged by the trial court on 25.11.2004. However, a revision petition No. 26 of 2005 filed by Deputy Commissioner (Legal) Customs and Central Excise, Hyderabad II against the said discharge order, has been allowed on 9.1.2006. Now the opposite party No. 2 Shri R.K. Singh has to face the trial there under Section 135(1)(b)(ii) of Customs Act, 1962.
13. It would also be significant to mention that when the two consignments were detained by D.R.I, officers Nhava Sheva Mumbai and it was found that officers of Customs department of Hyderabad were also involved, a case was registered by the C.B.I, by drawing a formal F.I.R. on 8.8.2002 at R.C. 33 (A)/2002 Hydd. and after due investigation 4 officers of Customs and Central Excise and two others have been prosecuted by charge-sheet dated 10.11.2004, under Sections 120B, 419, 420, 467, 468, 479 IPC and Sections 13(2) r.w. 13(1)(d) of Prevention of Corruption Act and Sections 132, 135(1)(a) and (b) (ii) of Customs Act, 1962. Due sanction for prosecuting them has also been obtained as required under Section 197 of the Code. The trial is now pending before the Special Sessions Court CBI at Hyderabad vide criminal case No. 19 of 2004. Opposite party No. 2 Shri R.K. Singh complainant is not an accused in that case.
14. After submission of the charge-sheet by the police, the learned Magistrate summoned the petitioners for facing the trial by his order dated 15.3.2003. Two petitions under Section 482 of the Code being Criminal Misc Case No. 557 of 2003, Vivek Chaturvedi and Ors. v. State of U.P. and Ors. and Criminal Misc. Case No. 670 of 2003, Jogindra Singh and Ors. v. Stale of U.P. and Ors. were filed before this Court, which were finally disposed of on 18.1.2005 by a common order, the operative (sic) of which is as follows:
In the above circumstances, the impugned order dated 15.3.2003 is hereby quashed. The learned court below is directed in proceed against the petitioners in accordance with law and also to consider as to whether sanction for prosecuting the petitioners is a must or not and also to sec that whether there is any such material on record which requires sanction under Section 197 Cr.P.C. or not and if so, he should pass a detailed and reasoned order so as to enable that he did apply his mind with respect to sanction for prosecuting the petitioners.
Learned Counsel for the petitioners, if he is aggrieved, may place such objections before the court concerned who after hearing learned Counsel for the accused persons as well as the learned Counsel for the complainant with respect to requirement and applicability of Section 196 Cr.P.c. or not at the stage of summoning the petitioners, shall puss suitable orders expeditiously, say, within a period of ten days from the date of appearance of learned counsel for the petitioners.
List /put of this case before the court below on 25.1.2005.
It is also provided that the application which has been moved by learned counsel for opposite party No. 2 under Section 340 Cr.P.C. may be moved by him before the court concerned who shall also take, the said application into consideration and dispose of the same within the above said period.
In view of what has been stated above, both the above petitions stand finally disposed of.
15. It transpires from the above order that during the pendency of the said petitions an application under Section 340 of the Code was moved before this Court, for prosecuting the petitioners for fabricating a false document of refusal of sanction for prosecution under Section 197 of the Code. Without taking any cognizance of that application a direction was given to opposite party No. 2 to move the same before the learned Magistrate. The copy of letter which is said to be forged and false is annexed as Annexure-4 to the affidavit of Shri Vivek Chaturvedi petitioner No. 1. This is dated 20.2.2002. It was on the representation of Shri R.K. Singh opposite party No. 2, whereby he had requested for sanction for prosecution of petitioners. This letter is signed by Shri Nasim Arshi, Under Secretary to Government of India. Prayer for prosecution of Shri Nasim Arshi signatory of this letter and one Shri Chandra Has Rai was also made. Before the learned Magistrate, an affidavit was filed by Sri A.K. Singh, Special Secretary and Chairman of Central Board of Customs and Excise slating that the said letter was genuine and signed by Sri Nasim Arshi, Under Secretary to the Government of India in due discharge of his duties. The learned Magistrate has rejected the said application under Section 340 of the Code also holding that it was not expedient in the interest of justice to launch any prosecution. An appeal filed by opposite party No. 2 Shri R.K. Singh under Section 341 of the Code is said to be pending before the learned Sessions Judge, Lucknow.
16. After quashing the summoning order dated 15.3.2003 and remand of the matter for fresh disposal after giving due opportunity to the parties, objections and replies were filed before the learned Magistrate, who on a consideration of the matter passed the impugned order dated 15.2.2005 holding that the prosecution of petitioners under Section 211 and 193 IPC was barred by Section 195 of the Code and he did not summon them under these two sections, but directed them to appear/surrender according to law. He has held that the petitioners have failed to prove that the act committed by them was in discharge of their official duty.
17. The petitioners have challenged the charge-sheet as well as the order dated 18.2.2005 rejecting the objection/representation filed by them pursuant to the order of this Hon'ble Court dated 18.1.2005.
18. Heard the learned Counsel for the parties and perused the affidavit including counter, rejoinder and supplementary affidavits.
19. The learned Counsel for the opposite party No. 2 has raised an argument in the form of preliminary objection that after disposal of the earlier petitions on 18.1.2005 these petitions are not maintainable as they amount to review or recall of the said order, which is not permissible under Section 362 of the Code.
20. In para 26 of the supplementary counter affidavit, the opposite party No. 2 Shri R.K. Singh states as under:
Now the second application under Section 482 Cr.P.C. on the facts is not maintainable and permissible. Since, under disguise it seeks to review or recall the earlier final order dated 18.1.2005 of this Hon'ble High court and it is barred by Section 362.
21. In my opinion, this argument is totally misconceived. Petitioners had filed the earlier two petitions challenging the summoning order dated 15.3.2003 on various grounds and one of them was that they being public servants, the Magistrate could not take cognizance of any offence against them committed in discharge of official duty or purported exercise of official duty without sanction of the competent government as provided under Section 197 of the Code.
22. Order of this Court passed in these two petitions shows that this Court recorded the arguments of the parties and lastly observed that from the order of the learned Magistrate not a whisper comes out that he applied his mind with respect to the effect that before proceeding against the petitioners sanction was required or not as submitted by the Investigating officer himself. It was on these findings that the earlier summoning order dated 15.3.2003 was quashed and the leaned Magistrate was directed to pass fresh orders after hearing the parties and deciding the points involved, as it would appear from the order, the relevant part of which has been quoted earlier.
23. As such there was no decision of this Court on the points involved in these two petitions nor it could be because these impugned orders were not then in existence. The summoning order was quashed and it was left open to the learned Magistrate to decide the controversy, which has now been decided by the leaned Magistrate. Since he has dismissed the representation/objection of the petitioners, they have right to challenge the same in accordance with law The provision of Section 362 of the Code applies to the judgments and orders which once signed and pronounced cannot be reviewed or recalled subsequently.
24. Section 362 itself says that "save as otherwise provided by this Code or by any other law for the time being in force, no court when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error".
25. These petitions challenging the subsequent order do not in any way seek, review or recall of the earlier orders nor this Court is going to review or recall the order passed in earlier petitions, so Section 362 of the Code docs not apply.
26. Questions of resjudicata or constructive resjudicata arc also not applicable because it is the subsequent order passed by the learned Magistrate which has given rise to these petitions. There is no prior decision of any competent court on the points raised in these petitions.
27. In Kunstocom Electronics (i) Pvt. Ltd. v. Gilt Pack Ltd. and Anr. the Hon'ble Apex Court held that:
The High Court, in our opinion, was not justified in declining to exercise its jurisdiction and adjudicating the mater on merits. On an earlier occasion when the appellant moved the High Court, the High Court directed the CJM, Indore, to consider the objections raised by the appellant and to pass a reasoned order. Thereafter, the CJM, Indore, passed an order overruling the objections and decided to proceed with the case. When the appellant approached the High Court again against the speaking order passed by the CJM, the High Court once again declined to decide the petition on merits, but left it to be raised before the trial court at the lime of framing the charge. Raising the very same objections at the time of framing the charge would practically be an empty formality as the trial court had already taken a definite view in the mailer. The High court in passing the impugned order has virtually ignored the spirit behind the direction given and observations made in the earlier order. There is no hard and fast rule that the objection as to cognizability of offence and maintainability of the complaint should be allowed to be raised only at the time of framing the charge. Such was not the intention of the High Court in passing the order dated 15.5.1996. In any case, we have the authority of the judgment of this Court in the case of Ashok Chaturvedi v. Shiual H. Chasnchani to hold that the determination of the question as regards the propriety of the order of the Magistrate taking cognizance and issuing process need not necessarily wait till the stage of framing the charge. G.B. Pattanaik J. speaking for the court observed thus: SCC PP. 700-01, para 5).
This argument, however does not appeal to us inasmuch as merely because an accused has a right to plead at the lime of framing of charges that there is no sufficient material for such framing of charges as provided in Section 245 of the Criminal Procedure Code, he is debarred from approaching the court even at an earlier point of time when the Magistrate takes cognizance of the offence and summons the accused to appear to contend that the very issuance of the order of taking cognizance is invalid on the ground that no offence can be said to have been made out on the allegations made in the complaint petition. It has been held in a number of cases that power under Section 482 has to be exercised sparingly and in the interest of justice. But allowing the criminal proceeding to continue even where the allegations in the complaint petition do not make out any offence would he tantamount to an abuse of the process of court, and therefore, there cannot be any dispute that in such case power under Section 482 of the code can be exercised.
28. In view of the above, I find that the instant petitions arc not barred by Section 362 of the Code. The objection raised by the learned Counsel for the opposite party No. 2 is hereby over ruled.
29. It is submitted by the petitioners' counsel that the petitioners have been illegally and unnecessarily prosecuted on the mere report of the opposite party No. 2 and that there was no evidence to make out any prima facie case against the petitioners. He further submitted that there was an inordinate delay in lodging the FIR and the FIR when lodged with delay gets bereft of the advantage of spontaneity, danger creeps in of the introduction of the coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It was further submitted that there was no evidence of any criminal conspiracy and ingredients required under Section 120B IPC were not at all satisfied and that the prosecution of the petitioners was legally barred because there was no sanction accorded by the Government and that the sanction to prosecute them has already been declined by the Central Government. The learned Counsel submits that when there was no prima facie evidence or there is a legal bar, although the jurisdiction under Section 482 of the Code should be exercised sparingly and with due care and caution yet unnecessary harassment to the accused should be avoided and no body should be allowed to make abuse of the process of law. In support of this contention, the learned Counsel referred to the case of Zandu Pharmaceutical works Ltd. v. Mohd. Shnraful Haque in para X and 9 of which the scope of the inherent jurisdiction of the High Court under Section 482 of the Code and the grounds on which it should be exercised have been elucidated as follows:
Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court; it only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle " quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non protest" (When the law gives a person anything, it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to he exercised ex debt to justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
30. In R.P. Kapur v. State of Punjab this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:
(i) Where it manifestly appears that (here is a legal bar against the institution or continuance e.g. want of sanction;
(ii) Where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
31. In State of Haryana and Ors. v. Bhajan Lal and Ors. 1992 Supp (1) SCC 335, the Hon'ble Apex Court while dealing with the question of jurisdiction of the High Court under Section 482 has enumerated the following categories of cases where this power can be exercised. To quote the words of the Hon'ble Supreme Court, "the following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482 Cr.P.C. can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:
(i) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(ii) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officers under Section 156(3) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(iii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(iv) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(vii) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
32. In Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Handrojirno Angre and Ors. , the Hon'ble Supreme Court held that when ingredients of criminal offence were wanting, the High Court was justified in quashing the criminal proceedings in exercise of its power under Section 482 of the Code.
33. The learned Counsel for the opposite party No. 2 has referred to the case of State of M.P. v. Awadh Kishore Gupta and Ors. where the Hon'ble Apex Court has stated the reason behind grant of inherent powers to High Court as under:
No legislative enactment dealing with procedure can provide for all cases that may possibly arise, Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in Section 482 Cr.P.C. which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a persons anything it gives him that without which it cannot exist).
34. The principle of law as laid down by the Hon'ble Supreme Court in the aforesaid cases clearly shows that the High Court will have the jurisdiction to interfere in exercise of its power if it finds that the prosecution is barred by any specific provision of law or there is no offence made out on the basis of the material collected during the investigation or that the allegations made in the report are so absurd that no reasonable, man can believe them or that the allegations taken in toto do not amount to any offence.
35. In view of the aforesaid legal position, this Court has, therefore, to examine as to whether there is any offence prima facie made out against the petitioners on the basis of the material on record. As already indicated earlier, the petitioners can be divided into two categories, one, who are named in the FIR, which was registered on 15.1.2002, on the basis of an application of opposite party No. 2 under Section 156(3) of the Code and the other, who are not named in the FIR.
36. It would be significant to note that occurrence is said to be dated 16.2.2001. The application under Section 156(3) of the Code was moved on 21.12.2001 i.e. after about 10 months. The opposite party No. 2, who was taken to Delhi whether by force or of his own accord was interrogated by the competent authority in the evening of 16.2.2001 at New Delhi and on the basis of his own statement as well as the evidence recorded earlier by the officers of the D.R.I. Nhava Sheva, Mumbai, it was found by the officers of the Customs and Central Excise Department that there was prima facie material against opposite party No. 2 constituting an offence punishable under the provisions of the Customs Act. He, was therefore, taken into custody and produced before the Additional Chief Metropolitan Magistrate, New Delhi and after taking transit remand, he was produced at Hyderabad Court on 23.2.2001 and on this application, Hyderbad court directed him to be released on bail on 1.3.2001 but he was actually released on bail on 3.3.2001. Thereafter, he was again detained in custody when an order was passed by the Andhra Pradesh Government detaining him under the provisions of COFEPOSA. His detention order was revoked by the Advisory Board and he was actually released from custody on 17.6.2001. However, the proceedings before the Custom Authorities against the opposite party No. 2 continued there. He was fined by the Customs Commissioner under Section 114(1) of the Customs Act, 1962. He was also prosecuted under Section 135 of the Act and the trial is still pending after remand from the revisional court. The allegation against him as appear from the statement of Shri Vimal Kumar Jain is that he had tried to help him in the matter of export of chalk powder in the guise of naproxen, which was detained at Nhava Sheva, Mumbai port and he had enjoyed the hospitality including the air tickets from Delhi to Bombay and back and other incidental expenses including the stay in hotel of the party concerned. However, the opposite party No. 2 after being released from the custody on 3.3.2001, had sufficient time to report the matter to the police and in any case immediately after 17.6.2001 when he was again released from detention under COFEPOSA but he moved the application to the learned Magistrate on 21.12.2001 after inordinate delay.
37. In Thulia Kali v. The State of Tamil Nadu , The Hon'ble Supreme Court held that delay in lodging the FIR quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets bereft of the advantage of spontaneity, danger creeps in of introduction of coloured version, exaggerated account or connected story as a result of deliberation and consultation. It is therefore essential that the delay in the lodging of the first information report should be satisfactorily explained.
38. Unexplained delay in the present case is sufficient to create suspicion in the truthfulness of the version set out by the complainant in the application dated 21.12.2001. However, that alone cannot be a ground for rejecting the prosecution case specially in proceedings under Section 482 of the Code (when the trial is yet to be held) if, prima facie material is found to justify the continuance of proceedings. The Court has to see as to whether against those accused petitioners, who are not named in the FIR, is there any evidence to connect them with the alleged offence in question. The copy of the case diary has been filed by the petitioners vide criminal misc. case No. 978 of 2005 at page 7 to 47. Several witnesses have been examined including the wife of the complainant, opposite party No. 2 and two alleged independent witnesses i.e. Sujeet Kumar Tiwari and Rajeev Kumar Bajpai but none of them has disclosed the name of these petitioners in his examination under Section 161 of the Code.
39. The learned Counsel for the opposite party No. 2 has referred to the written statement allegedly given by Shri Vivek Chaturvedi, petitioner No. 1 giving his own version of the incident. He has mentioned that he along with two officers of Delhi and other staff of local Unit of Lucknow went to the house of opposite party No. 2 in the morning on 16.2.2001 and requested him to accompany Shri P.K. Katiyar and Shri D.P. Saxena, Intelligence Officers, who had come from Delhi and the opposite party No. 2 conceding their request went inside his house, dressed up and, thereafter accompanied them of his own accord and he was taken in his Ambassador Car accompanied by S/Shri P.K. Katiyar and D.P. Saxena, Intelligence Officers of Delhi. The vehicle was being driven by Shri Faridul Hasan, driver. Even this application or written statement by Shri Vivek Chaturvedi cannot be read as a confession by him. In any event, the allegations made in this application cannot be read against the other accused persons. Moreover, if this is read or taken into consideration, it will be read as a whole and not one part favourable to the prosecution will be read to prove the conspiracy or participation of the accused not named in the FIR.
40. There is no allegation that the other accused, who participated and who are not named in the FIR were not known to complainant/opposite party No. 2 and the reasons for not mentioning their names were not at all disclosed at any stage. They were not subjected to any identification test nor there is any material at all to show that they in any way conspired with the other accused petitioners of criminal misc. case No. 977 of 2005.
41. In Esher Singh v. State of A.P. , the Hon'ble Apex Court held in paras 34 to 37 as follows:
34. Section 120B IPC is the provision which provides for punishment for criminal conspiracy. The definition of "criminal conspiracy" given in Section 120A reads as follows:
120-A. When two or more persons agree to do, or cause to be done,-
(I) an illegal act, or (II) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides, the agreement is done by one or more parties to such agreement in pursuance thereof.
The elements of a criminal conspiracy have been stated to be: (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a combination of minds. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to encompass all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. (See American Jurisprudence, Vol. II, Section 23 p. 559) For an offence punishable under Section 120B, the prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means.
35. No doubt, in the case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not b e illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.
36. In Halsbury's Laws of England (vide 4th Edn., Vol. 11, p. 44, para 58), the English law as to conspiracy has been stated thus:
58. Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment for which is imprisonment or fine or both in the discretion of the court.
The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be. The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other.
37. There is no difference between the mode of proof of the offence of conspiracy and that of any other offence, it can be established by direct or circumstantial evidence. (See Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra A.I.R. 1965 S.C. 682 at 686)
42. In Kehar Singh and Ors. v. State (Delhi Administration) , The Hon'ble Apex Court considered the necessary ingredients of the conspiracy and held that there must be evidence to indicate that the accused was in agreement with the other accused persons to do the act which was the ultimate object.
43. In the present case, there was no evidence at all before the Investigating Officer to show prima facie participation of the accused petitioners not named in the FIR. There was also no evidence to show any conspiracy or any evidence to indicate that they had entered into any agreement to do any unlawful act or to commit an offence along with the other accused persons/petitioners. The alleged confessional statement of Shri Vivek Chaturvedi, which is said to have been given to the Investigating Officer also does not disclose about any conspiracy between accused persons. They had gone there with a view to persuade opposite party No. 2 to accompany the officers of Delhi to go there for the purpose of inquiry, where for he had already been summoned.
44. There being no evidence at all to prove any conspiracy, none of the accused petitioners could be prosecuted for the offence under Section 120B IPC.
45. Learned Counsel for opposite party No. 2 complainant urged that in the log book, the name of opposite party No. 2 was not shown. This is indicative of conspiracy. In the log book, there are certain columns prescribed, which arc filled in by the driver and counter signed by the officer having control over the vehicle . There is no column for mentioning the names of at those who travelled in the vehicle., So, this argument is also bereft of any substance.
46. There is another allegation that while taking the opposite party No. 2 to Delhi enroute near Aligarh, Shri P.K. Katiyar snatched Rs. 400/-from opposite party No. 2 and paid the same towards the price of the petrol, which was filled in the vehicle, wherein he was being taken to Delhi and that on the cash memo, Shri P.K. Katiyar endorsed that the amount of Rs. 400/- was paid by him. It is alleged that he made this endorsement to claim reimbursement of the amount from the Government. This was a subject matter of documentary evidence. The cash memo with endorsement was best proof The petitioners have denied that any such sum was paid as price of fuel at any Petrol Pump in or near Aligarh or that any such endorsement was made by Shri P.K. Katiyar on any such cash memo or the said amount was claimed by him from the Government. The Investigating Officer could have collected the necessary documentary evidence in support of these allegations but no such evidence was collected and there being no evidence at all, this allegation also goes unsubstantiated by any material and therefore, it can safely be said that there is no evidence of snatching of any sum from opposite party No. 2 or making any endorsement on any cash memo by Shri P.K. Katiyar. No offence under Section 392 I.P.C. is prim facie made out against any of the petitioners as there is no evidence to that effect.
47. In view of the above, there is no shred of evidence against the petitioners of Criminal Misc. Case No. 978 of 2005 Jogendra Singh and 11 others to make out any prima facie case for trial against them and they have been unnecessarily dragged in the criminal case. The petition filed by them deserves to be allowed on this ground alone.
48. Now the case of S/Shri Vivek Chaturvedi, D.P. Saxena and P.K. Katiyar remains to be considered, who have inter alia, raised the plea that two of them namely, Saxena and Katiyar, who were assigned this task from his higher authority took Shri R.K. Singh, opposite party No. 2 to Delhi in discharge of their official duty and that they cannot be prosecuted without sanction of the Central Government as required under Section 197 of the Code.
49. Section 197 of the Code provides that when any person, who is or was a Judge or Magistrate or public servant not removable from his office 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 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.
(b) In the case of a person.... It is undisputed that the petitioners as well as opposite party No. 2 are the officers employed by the Central Government and so sanction could be accorded only by the Central Government.
50. The question that surfaces for consideration at this juncture is as to whether the act complained of was committed by the petitioners in the discharge of their official duty. There is no allegation that there was any personal enmity or the petitioners had any personal vendetta against the opposite party No. 2 to falsely implicate him in any case. The case under the Customs Act against the opposite party No. 2 was under investigation on account of detention of the goods of the two consignments at Nhava Sheva Airport, Mumbai and the officials of D.R.I, who had intercepted those goods were not the petitioners , they were totally different officers, who had found that a fraud was being played by bogus consignments and the government was being cheated of the huge sum of money.
51. The name of the opposite party No. 2 was disclosed by one of the accused of that case. His presence was required by Smt. Sanyogita Mishra, Superintendent, Directorate of Revenue Intelligence and investigation for making an inquiry from him. Summons were sent to him once for 19.1.2001 and other for 14.2.2001 but the opposite party No. 2 did not comply with those summons. Instead, he while seeking exemption on the ground of his illness, sent a signed blank paper with a letter to write any statement according to their own wish and design. This act of the opposite party No. 2, complainant was sufficient to annoy the officers. Conducting the iquiry/investigation. However, two officers S/Shri D.P. Saxena and P.K. Katiyar of Customs and Central Excise were sent to Lucknow with a direction to take assistance of the petitioner No. 1 Shri Vivek Chaturvedi, Deputy Director, Customs and Central Excise posted at Lucknow and to ensure his appearance before the D.R.I officers at Delhi on 16.2.2001.
52. It would be also worth to mention that when the opposite party No. 2 was in custody at Hyderabad in connection with the export of chalk powder in the name of NAPROXEN, an application for bail was moved by his counsel. The application was verified and signed by his father, Shri Lalit Mohan Singh, who is a retired IPS officer. Para 1 of this application states that "the petitioners have been arrested by the respondents-Senior Intelligence Officers, Directorate of Revenue and Intelligence, Regional Unit, Hyderabad on 17.2.2001 at 11.30 a.m. at D.R.I., I.P. Bhawan, I.P. Estate, New Delhi.
53. It is submitted that the petitioner is a permanent resident of 60 B, Parag Narain Road, Lucknow. The petitioner is working as Inspector of Central Excise. On 16.2.2001, two officers of Directorate of Revenue and Intelligence came to the petitioners' house and served the summons upon the petitioners under Section 108 of the Customs Act to appear before the D.R.I., New Delhi on 16.2.2001 at 5.30 p.m. on which date, the petitioners appeared and the respondent recorded the statement of the petitioner.
54. Para 2 of the said application states:
It is submitted that the respondent shown the arrest memo on 17.2.2001 at D.R.I, Delhi and produced before the Chief Metropolitan Magistrate, Delhi for transit remand and the respondent after obtaining transit remand, the respondent remanded the petitioners in Central Jail, Tihar, Delhi and he was produced before the Special Judge for Economic Offences, Hyderabad. It is further submitted that the Chief Metropolitan Magistrate directed to produce the petitioners in custody before the Special Judge, Hyderabad on or before 20.2.2001.
55. A perusal of the aforesaid paragraphs as well as the other allegations made in the application under Section 437 of the Code for bail in the case under Section 135, of the Customs Act, 1962 reveal that no allegation was made at the earliest available opportunity that he was forcibly taken from his house or that any deceitful means was employed to take him from his house. The version of the petitioners in this regard is that since two of them were deputed from Delhi and one Shri Vivek Chaturvedi, petitioner was directed on telephone to cooperate, therefore, they along with other staff of the local Unit reached his house in the morning at about 6.30 a.m. and requested him to accompany S/Shri D.P. Saxena and P.K. Katiyar, and he accepted their request and went inside the house and came back well dressed up and prepared for the journey. He was thereafter taken to Delhi in the said Ambassador Car, which was official car of petitioner Shri Vivek Chaturvedi to Delhi and produced there and his statement was recorded. Petitioner No. 1, Shri Vivek Chaturvedi did not accompany them.
56. It is submitted on behalf of the petitioners that the petitioners 2 and 3 took Shri R.K. Singh, opposite party No. 2 to Delhi in the official car in discharge of their official duty without using any force or employing any deceitful means, therefore, it would neither be an offence punishable under Sections 363 or 365 IPC nor they can be prosecuted without prior sanction of the Central Government. As stated in the bail application, opposite party No. 2 had himself gone in the vehicle of his own accord. No offence of abduction can be said to have been prima facie disclosed because in the definition of abduction in Section 362 of the Code it has been provided that "whoever by force compels, or by any deceitful means induces any person to go from any place, is said to abduct that person". The learned Counsel for the opposite party No. 2 has urged that reaching of the officers in more than one vehicle and forcing the opposite party No. 2 to accompany them deprived him of his liberty and was an offence punishable under Section 365 IPC and that the force used by them could not be said to have been done in discharge of their official duty. He referred to the case of K. Kalimuthu v. State by DSP 2005 SCC (Cri) 1291, wherein it was held by Hon'ble Apex Court that the protection given under Section 197 Cr.P.C. is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge (SIC).
57. The said protection under Section 197 Cr.P.C. has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 Cr.P.C. can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in discharge of his official duties.
58. "Official" according to the dictionary, means pertaining to an office, and "official act" or "official duty" means an act or duty done by an officer in his official capacity. Thus, use of the expression "official duty" in Section 197 Cr.P.C. implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.
59. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 Cr.PC does not get immediately attracted on institution of the complaint case.
60. Section 197 CrPC has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is, under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in the course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in course of duty. For instance a public servant is not entitled to indulge in criminal activities,- To that extent the section has to be construed narrowly and in a restricted manner.
61. If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 Cr.P.C. cannot be disputed."
62. It was also held that the bar created by Section 197 is absolute and complete hence Court cannot take cognizance of complaint against the public servant in respect of an offence alleged to have been committed in discharge of official duty unless sanction is obtained from the appropriate competent authority.
63. One of the test as noted above, in considering the question of requirement of sanction under Section 197 is that the omission or neglect on the part of the public servant to commit the act complained of could have made him liable or answerable for a charge of dereliction of his official duty. In the present case, two of the petitioners were deployed from Delhi and one was directed on phone to ensure presence of opposite party No. 2 at D.R.I., New Delhi on 16.1.2001 and in compliance thereof they went to their house and requested him and took to Delhi. As such the act committed by them was in discharge of their official duty because if the petitioners would have declined to follow the direction of their superior officers they would have been answerable for the charge of in subordination and dereliction of duty.
64. In the State of Orissa through Kumar Raghvendra Singh and Ors. v. Ganesh Chandra Jew , the Hon'ble Supreme Court while considering the question of sanction of Section 197 of the Code held as follows:
The pivotal issue i.e. applicability of Section 197 of the Code needs careful consideration. In Bakhshish Singh Brar v. Gurmej Kaur this Court while emphasizing on the balance between protection to the officers and the protection to the citizens observed as follows: (SCC p. 667, para 6).
It is necessary to protect the public servants in the discharge of their duties ....In the facts and circumstances 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 197 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 emphasized that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence." The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has (sic) public servant is reasonably connected with the discharge of (sic) duly and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duly which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There can be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant.
65. In Arulswami v. State of Madras Hon'ble Apex Court held:
It is not therefore, every offence committed by a public servant that requires sanction for prosecution under Section 176(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duly. Where it is n unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.
66. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by Hon'ble Apex Court (AIR 1956 S.C. 44 at 49)"-
The offence alleged to have been committed (by the accused) must have something to do, or must be related in some manner, with the discharge of official duty....
There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable (claim), but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.
67. If on facts, therefore, it is prima facie, found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed.
68. In Hetai Dutta v. State of W.B. , the Hon'ble Supreme Court quashed the criminal prosecution on the findings that there was absolutely no ground to proceed against the accused- appellant.
69. In Ramesh and Ors. v. State of T.N. also the Hon'ble Supreme Court quashed the prosecution on the ground that the material on record did not furnish legal basis for the Magistrate to take cognizance of the offences alleged.
70. Obviously, the acts performed by the petitioners in taking the complainant/opposite party No. 2 to Delhi can be said to have been done in discharge of official duty because the refusal or non-compliance of the orders would have made them liable for disciplinary action on the administrative side. Therefore, sanction was required in the present case under Section 197 of the Code before prosecuting them. This is why the Investigating Officer has also made a request through proper channel for according sanction for prosecution of the petitioners.
71. Once it is held that sanction was must and there being no sanction the petitioners cannot be permitted to be subjected to the ordeal of the trial and it would amount to the abuse of the process of the Court to permit them to be tried. The Central Government has already declined the sanction as is apparent from the annexure 4 to the affidavit. It was within the jurisdiction of the Central Government to accord or refuse the sanction for prosecution . The central Government after examining the matter has declined the sanction. Order of the Central Government has been authenticated and communicated to all concerned including Shri R.K. Singh opposite party No. 2. The opposite party No. 2 has filed an application under Section 340 of the code before the learned Magistrate but it would appear from the order of the learned Magistrate that Shri A.K. Singh Special Secretary-cum-Chairman of the Central Board of Customs and Central Excise filed an affidavit before him that the said letter was genuine and was issued and signed by Shri Naseem Warshi, Under Secretary to the Government of India. The learned Magistrate did not consider it appropriate to launch any prosecution against any one as the said letter communicating the decision of the Central Government was not forged.
72. The authenticity of this letter cannot be disputed. It has been issued by the Government of India, Ministry of Finance and signed by Under Secretary to the Government of India. Moreover, the opposite party No. 2 did not challenge it by way of any writ petition or other legal recourse so once the sanction has been declined, the court was not at all competent to take cognizance of the offence because the bar created by Section 197 is absolute and complete. The learned Magistrate committed legal error in holding otherwise.
73. There being a legal bar against the prosecution of the petitioners of Criminal Misc. Case No. 977 of 2005 and there being absolutely no evidence making out any prima facie offence against the petitioners of Criminal Misc. Case No. 978 of 2005, and the prosecution of these petitioners being abuse of the process of court, this is a fit case where the power under Section 482 of the Code should be exercised.
74. Both the petitions are, therefore, allowed. The impugned order dated 15.2.2005 including the charge-sheet submitted against the petitioners are hereby quashed.