Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICITON
CRIMINAL APPEAL NO. 1342 OF 2008
(Arising out of SLP (Crl.) No. 4135 of 2006)
Goondla Venkateswarlu …Appellant
Versus
State of A.P. and Anr. …Respondents
JUDGMENT
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned
Single Judge of the Andhra Pradesh High Court dismissing the
petition filed by the appellant under Section 482 of the Code
of Criminal Procedure, 1973 (in short ‘Cr.P.C.’). The prayer
1
was to quash the proceedings before learned Additional
Judicial Magistrate, First Class, Karimnagar in CC No.356/96.
3. Background facts as projected by the appellant are as
follows:
The appellant, at the relevant time in 1994, i.e.
24.10.1994, was working as Assistant Commissioner of
Commercial Taxes. He alongwith his subordinate staff went to
the business premises belonging to the respondent no.2 for
carrying out an inspection during business hours. The
premises were registered business premises of M/s. Rajani
Fireworks whose proprietor is the son of the respondent no.2.
The officials went to the premises at 5 p.m. on 24.10.1994. In
the same business premises, the documents and business
stocks relating to Kasanagottu Srisailam and Bros. were also
noticed. During the inspection, the son of the respondent
no.2 alongwith one Sri. Kasanagottu Satyanarayana said to be
one of the partners of Sri Kasanagottu Srisailam and Bros.
were available.
2
A statement of inspection was recorded. The statement
was recorded by the appellant on a request of the son of the
respondent no.2 on his business letter pad. The statement
was written by the son of the respondent no.2 on his own,
wherein he duly declared that the shop has been inspected
that day at 5.30 p.m. and that till the date of such inspection
i.e. 24.10.1994, he had not written any of the books of
accounts relating to his business and that he did not even give
the returns for the year 1993-94 and also that he did not
issue any sale bills.
As far as the stocks and documents relating to M/s.
Kasanagottu Srisailam and Bros., Mr. Kasanagottu
Satyanarayana stated that he was one of the partners and he
gave a statement on his letter head in his own hand writing,
only declaring that till the date of inspection i.e. 24.10.1994
he did not write any books of accounts relating to his
business. He also declared in writing that he is giving 178
slips containing the transactions relating to his business for a
detailed examination by the appellant.
3
The slips were not seized by the appellant but they were
submitted on their own by the owners of the business. Since
the accounts books were not written by them, these slips were
filed before the appellant for a subsequent examination, which
was on their own volition.
The stock book was signed and returned. No cash was
recovered.
The son of the respondent no.2 visited the office of the
appellant and declared that due to ill-health of his grand
mother he was seeking extension upto 30.10.1994. This was
given in writing by the son of the respondent no.2 who is the
proprietor of the business premises in respect of M/s. Rajani
Fireworks.
On three dates, i.e. 7.11.1994, 15.11.1994 and
25.11.1994, the son of the respondent no.2 and Kasanagottu
Satyanarayan came to the office of the appellant but failed to
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give any proper explanation for the business transaction.
Thereafter the matter had been taken up and best judgment
assessment was completed.
After a period of three months after the inspection, i.e. on
24.1.1995, the respondent no.2 herein filed a complaint for
alleged commission of offences punishable under Sections
448, 380, 384 and 506 of the Indian Penal Code, 1860 (in
short ‘IPC’) before the Judicial Magistrate, Ist
Class,Karimnagar, stating that the appellant along with his
subordinate, have taken away the bill books, cheque books,
records and also Indira Vikas Patras (for short ‘IVPs’) worth
Rs.2 lacs forcibly without giving any acknowledgement and
without conducting panchanama duly intimidating his son
and forcibly taking the signatures of his son on white papers
with an intention to extract Rs.3 lacs.
In the complaint it was mentioned that the shop-cum-
residence was inspected on 24.10.1994 and the time of
inspection was 7 - 9.30 p.m.
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In the sworn statement he mentioned it as 3 p.m. as the
time of inspection.
It is relevant to point that the complaint was not made by
the owner of the business namely the son of the respondent
no.2 but by the respondent no.2 alone.
The above complaint was referred by the Magistrate to
the police.
After a thorough enquiry the police filed a final report on
18.9.1995 that the complaint itself is a false complaint.
However, the police report was objected to by the
complainant as wrong and incorrect and that it is without any
proper investigation.
It appears that without giving any reasons whatsoever
and without recording any defect in the final report of the
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police and without any sufficient additional materials, the said
objection was taken into cognizance and the Magistrate has
issued notice and process to the appellant and his
subordinate in CC No.356/1996 and the officials were asked
to appear before the Court for trial of offences u/s 448, 380,
384 and 506 IPC.
The appellant had appeared from time to time before the
learned Magistrate and it was pointed out that the said
complaint itself is false and in any case process ought not to
have been issued since there was specific bar contained under
Section 37 of the Andhra Pradesh General Sales Tax Act, 1957
(in short ‘the Act’) read with Section 197 of the Cr.P.C.
The appellant herein along with the other officials
preferred a petition before the learned Magistrate under
Section 37 of the Act read with Section 197 Cr.P.C. with a
prayer to dismiss the complaint.
7
A petition under Section 482 Cr.P.C. was filed before the
High Court praying for quashing of the proceedings pending in
CC. No.356 of 1996. This was numbered as Crl. O.P. No.4006
of 1997. This was admitted on 22.10.1997 and the High
Court granted an order of interim stay.
During the course of the hearing it was pointed out to
the High Court that Crl.M.P. No.54/1997 has been filed by the
appellant and others before the learned Magistrate under
Section 37 of the Act read with Section 197 of Cr.P.C. seeking
dismissal of the complaint. The High Court disposed of the
Crl.O.P. No.4006 of 1997 directing the learned Additional
Judicial Ist Class Magistrate, Karimnagar to dispose of the
Crl.M.P. No.54 of 1997 within a period of 3 months.
Subsequently the mistake of the fact that the application itself
has been dismissed for default on 21.4.1997 came to the
knowledge of the appellant. The mistake has occurred since
there was communication gap between the appellant and his
counsel at trial court since the appellant has been transferred
to various places subsequent to the filing of the criminal
complaint.
8
Therefore, the appellant herein filed a fresh Crl.O.P.
under Section 482 Cr.P.C. before the High Court pointing the
aforesaid facts and seeking the quashing of the complaint.
This was numbered as Crl. Petition No.5218/2001.
The High Court while taking up the petition stayed all
further proceedings in the CC No.356 of 1996.
By the impugned order the High Court dismissed the
Crl.O.P.No. 5218 of 2001 filed by the appellant herein. The
High Court even after noting down all the provisions relevant
under the Act and after noting down the protection under
Section 197 Cr.P.C. came to hold that “having regard to the
specific allegation that officer who has searched and seized the
documents has not issued any receipt to evidence that such
seizure was in discharge of official duty or any search warrant
was issued by the appellant before searching the business
premises and the residence of the complaint, it is for the
appellant/accused to lead evidence and establish that acts
done by him was in due discharge of the official duties and
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non issue of receipt in evidence of seizure was in dereliction of
duties, if any. In the absence of the same, it is not possible for
this Court to accept the plea taken by the appellant that the
acts complained of are done in discharge of official duty or in
dereliction of duties for quashing the proceedings at the initial
stage unless the complainant is given opportunity to establish
his case.”
The petition was resisted by the respondent before the
High Court on the ground that Section 37 cannot come to the
aid of the appellant as the alleged acts had nothing to do with
discharge of official duty.
With reference to sub-sections (3) and (4) of Section 28 it
was observed by the High Court that the acts complained of
are not encompassed by the said provision to give any
protection to the appellant. Accordingly, as noted above, the
petition was dismissed.
10
4. In support of the appeal, learned counsel for the
appellant submitted that the scope and ambit of Sections 27,
28 and 37 of the Act as well as Section 197 Cr.P.C. have not
been kept in view. It was submitted that the proceedings were
nothing but abuse of the process of law and, therefore, the
High Court should have interfered in the matter. Learned
counsel for respondent No.2 submitted that he has no
instructions in the matter and does not want to have any say.
5. In order to appreciate the submissions of the appellant it
is necessary to take note of Sections 27, 28 and 37 of the Act.
They read as follows:
“Section 27: Possession and submission of
certain records by owners, etc. of goods
vehicles: - The owner or other person in
charge of a goods vehicle shall carry with him
– (i) Bill of sale or delivery note (ii) goods
vehicle record or trip sheet and (iii) such
other documents as may be prescribed
relating to the goods under transport and
containing such particles as may be
prescribed and shall submit to the
Commercial Tax Officer, having jurisdiction
over the area in which the goods are
delivered, the documents aforesaid or copies
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thereof within such time as may be
prescribed.
Section 28: Powers to order production of
accounts and powers of entry, inspection
etc.:-
(1) Any officer not below the rank of an
Assistant Commercial Tax officer authorized
by the State Government in this behalf may
for the purpose of this Act, require any dealer
to produce before him the accounts, registers
and other documents, and to furnish any
other information relating to his business.
(2) All accounts, registers and other
documents maintained by a dealer in the
course of his business, the goods in his
possession, and his officers, shops, godowns,
vessels or vehicles shall be open to inspection
by such officer any time during the business
hours prescribed under the relevant law of
the time being in force or where no such
hours are prescribed at all reasonable times.
(3) If any such officer has reason to suspect
that any dealer is attempting to evade the
payment of any tax or other amount due from
him under this Act, he may, for reasons to be
recorded in writing, seize such accounts,
registers or other documents of the dealers
as he may consider necessary and shall given
the dealer a receipt for the same. The
accounts, registers and documents so seized
shall be retained by such officer only for so
long as may be necessary for their
examination and for any injury or
proceedings under this Act:
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Provided that such accounts, registers
and documents shall not be retained for more
than thirty days at a time except with the
permission of the next higher authority.
(4) For the purpose of sub-section (2) or
sub-section (3), any such officer shall have
power to enter and search at any time during
the business hours prescribed under the
relevant law for the time being in force, or
where such hours are prescribed, at all
reasonable times, any officer, shop, godown,
vessel, vehicle or any other place of business
or any building or place where such officer
has reason to believe that the dealer keeps or
is, for the time bring, keeping any goods,
accounts, registers or other documents of his
business.
Provided that no residential
accommodation not bring a shop-cum-
residence shall be entered into and searched
by any officer below the rank of Deputy
Commissioner except on the authority of an
order issued by any officer not below the
rank of a Deputy Commissioner having
jurisdiction over the area; or an officer not
below the rank of Deputy Commissioner of
Commercial Taxes Department working in
Vigilance and Enforcement Department
having jurisdiction over the entire State of
Andhra Pradesh.
And all searches under this sub-section
shall so far as may be, made in accordance
with the provisions of the Code of Criminal
Procedure, 1973 subject to the rules, if any,
made in this behalf.
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(5) The power conferred by sub-section (4)
shall include the power to break open and
box or receptacle in which any goods
accounts, registers or other documents of the
dealer may be contained, or to break open
the door of any premises, or other documents
may be kept:
Provided that the power to break open
the door shall be exercised only after the
owner or any other person in occupation of
the premises, if he is present therein, fails or
refuses to open the door on being called upon
to do so.
Section 37 Protection of acts done in good
faith:
(1) No suit, prosecution or other proceeding
shall lie against any officer or servant of the
State Government for any act done or
purporting to be done under this Act without
the previous sanction of the State
Government, and no such suit, prosecution
or other proceeding shall be instituted after
the expiry of six months from the date of the
act complained of.
(2) No officer or servant of the State
Government shall be liable in respect of any
such act in any civil or criminal proceeding if
the act was done in good faith in the course
of the execution of duties imposed on him or
the discharge of functions entrusted to him
by or under this Act.
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6. Section 37 like Section 197 Cr.P.C. aims at preventing
vexatious prosecution and proceedings against public
servants.
7. Section 37 puts embargo on institution of suits,
prosecution or other proceedings against any officer or any
servant of the State Government for any act done or purported
to be done under the Act without previous sanction of the
State Government. There is a further embargo i.e. no such
suit, prosecution or proceeding shall be instituted after the
expiry of six months from the date of the act complained of.
Sub-section (2) affords protection to the officer referred to
above in respect of an act if the same was done in good faith
in the course of execution of duties imposed or the discharge
of functions entrusted by or under the Act.
8. “Good faith” according to the definition in General
Clauses Act means a thing, which is in fact done honestly
whether it is done negligently or not (See H.H.
15
Maharajadhiraja Madhav Rao Jivaji Rao Scinida Bahadur of
Gwalior etc. v. Union of India and Anr. 1971 (1) SCC 85).
9. Anything done with due care and attention which is not
malafide is presumed to have been done in “good faith” (See
Madhavrao Narayanrao Patwardhan v. Ram Krishan Govind
Bhanu and Ors. (1959 SCR 564)
10. Section 197 Cr.P.C. provides for protection to public
servants in discharge of official duties. There is a need to
balance between protection to officers and protection to
citizens.
11. In Rakesh Kumar Mishra v. State of Bihar and Ors.
(2006 (1) SCC 557) it was observed as follows:
“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
16
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 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 from 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 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 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
17
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 his 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 does not get
immediately attracted on institution of the
complaint case.”
12. In State of Haryana and Ors. v Bhajan Lal and Ors.
(1992 Supp. (1) SCC 335), it was observed as follow:
“102. In the backdrop of the interpretation of
the various relevant provisions of the Code
under Chapter XIV and of the principles of law
enunciated by this Court in a series of
decisions relating to the exercise of the
extraordinary power under Article 226 or the
inherent powers under Section 482 of the
Code which we have extracted and reproduced
above, we give the following categories of cases
by way of illustration wherein such power
could be exercised 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
18
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.
(1) 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.
(2) 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(1) of the
Code except under an order of a Magistrate
within the purview of Section 155(2) of the
Code.
(3) 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.
(4) 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.
(5) 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
19
there is sufficient ground for proceeding
against the accused.
(6) 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.
(7) 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.”
13. As the factual scenario goes to show the proceedings
were nothing but abuse of the process of law.
14. In view of what is stated in Section 37 of the Act and the
ratio in Bhajan Lal’s case (supra) the appeal deserves to be
allowed which we direct. The proceedings in CC No.356/96
pending before learned Additional Judicial Magistrate, First
Class, Karimnagar stand quashed.
The appeal is allowed.
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……………………………………J.
(Dr. ARIJIT PASAYAT)
……………………………….……J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi:
August 25, 2008
21