E.B. Surabjan Singh vs State

David Annoussamy, J.—This is a revision petition filed by the fourth accused against an order of dismissal by the trial court of a petition seeking to discharge him. There are a large number of accused in this case. Accused No. 1 is amongst the set of officers of the Central Excise department and accused 10 to 29 are the licensees for the sale of tobacCompany The crux of the case is that there is a provision under the Central Excise and Salt Act, 1944 (hereinafter referred to as the Act) to destroy such tobacco as is found unfit for human consumption. Taking advantage of that provision the accused would have colluded to create records as if a huge quantity of tobacco has been destroyed as unfit for human consumption, even though it was allowed to be sold in the market depriving thereby the exchequer of revenue to the tune of Rs. 60 lakhs The occurrence took place in the year 1975-76. It was detected by the department in the year 1976. F.I.R. was filed on 25.5.1977. The investigating officer on the completion of the investigation filed a report under S. 173 of the Criminal Procedure Code, to the effect that several offences appeared to have been committed by the accused. The offences alleged to have been committed by the 4th accused and other accused are those punishable under Ss. 120-B, 420 read with 34, 161, 165-A and S. 5(1) (d) read with S 5(1) of the Prevention of Corruption Act, 1947. Before the trial Court took up the matter for framing of charges, the petitioner filed an application on 21.6.1982, before the trial court to discharge him. That application was dismissed by the trial court on 9.8.1983. Subsequently, the trial court framed as many as 90 charges, covering all the accused, on 11.8.1983, as per the final report filed by the investigating officer. It is against the order of the trial court dated 9.8.1983, that the present revision petition is filed.

Two grounds were urged before me. The first one is that no proper sanction has been obtained before instituting the prosecution. Though the petitioner herein appears to have referred to this aspect of the case in his application to the trial Judge very vaguely, it does not appear that he has pressed it before the Judge since there is no reference whatsoever to this aspect of the case in his judgment. However, this point deserves to be considered in order to set at rest the question. The petitioner herein was a Superintendent of Central Excise at the time of the occurrence. The case of the revision petitioner was that sanction was necessary both under S. 197, Crl.P.C. and S. 6 of the Prevention of Corruption Act. Under the latter provision of law, sanction would be necessary only for those who are in service at the time of the prosecution and not for those who have retired. It is admitted by the revision petitioner that he has retired from service and it is also now conceded by the Learned Counsel for the revision petitioner that no sanction would be necessary under S.6 of the Prevention of Corruption Act. But the Learned Counsel for the revision petitioner very strenuously contended that sanction under S.197, Cr.P.C. would be necessary even if the Government servant is retired. The fact that sanction would be necessary even in respect of a retired Government servant is patent from the very language of S.197, Crl.P.C. But the point raised by the Learned Counsel for the prosecution is that sanction is necessary only in respect of such public servant as is not removable from his office save by or with the sanction of the Government. It is admitted by the Learned Counsel for the revision petitioner that the Collector of Central Excise was the appointing authority in respect of the petitioner and that the petitioner was removable by an order of the Collector of Central Excise. But, he would never the less contend that the provisions of S.197, Crl.P.C. is applicable to all public servants and is not restricted to those who are removable only by the order of the Ministry. He would argue that the protection afforded under S.197, Cr.P.C. would become illusory if it was restricted to one category of Government servants alone. This stand taken by the Learned Counsel for the revision petitioner is hard to accept. Firstly, the Legislature has not prescribed a sanction for the prosecution of any Judge or Magistrate or Public servant. It qualified the word ''public servant'' by the phrase not removable from his office save by or with the sanction of Government. The, Legislature has therefore expressly restricted the application of the provision of S.197 Cr.P.C. to a specific category of public servants in which category the petitioner does not fall. Secondly, the restriction under S.197 Cr.P.C. is not meant in the interest of the individual officers, it is meant to protect the interest of the State. As observed by the Law Commission in its 41st Report, the ultimate justification for the protection conferred by S.197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecutions and it should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant. Since the acts done by the Subordinate Officers are not of great public interest, it is quite normal that the provisions of S.197 are hot extended to them, but restricted only to such of the officers as are not removable from their office save by or with the sanction of the Government. Therefore, there is no merit in the first ground urged by the Learned Counsel for the revision petitioner.

The second ground urged by the Learned Counsel for the revision petitioner is that the prosecution is barred by limitation. He would place reliance on the provisions of S.40 (2) of the Act which reads as follows--

No proceeding, other than a suit shall be commenced against the Central Government or any officer of the Central Government or a State Government for any thing done or purported to have been done in pursuance of this Act or any Rule made thereunder, without giving the Central Government or such officer a month''s previous notice in writing of the intended proceeding and of the cause thereof after the expiration of three months from the accrual of such cause.

Learned Counsel for the revision petitioner would contend that the period of limitation of three months provided in the above quoted provision of law would be available to him for the prosecution launched against him for offences under Ss. 120-B, 420 read with 34, 161, 165-A and Sec.5 (1) (d) read With S.5 (2) of the Prevention of Corruption Act. In this connection, he would place reliance on a judgment of the Supreme Court in Public Prosecutor, Madras Vs. R. Raju and Another, etc., . That judgment was rendered before the amendment of S.40 (2) of the Act in the form as it stands now and as has been extracted above. That S.40 (2) of the Act at the time of the Supreme Court decision relied upon by the petitioner was as follows--

No suit, prosecution or other legal proceeding shall be instituted for anything done or ordered to be done under this Act after expiration of six months from the accrual of the cause of action or from the date of the act or order complained of.

On the basis of, the above, quoted statutory provision, the Supreme Court held that the sub-Sec. (2) of S. 40 of the Act was available not only to Government servants but to any person against whom suits or proceedings or prosecution shall lie. It was also contended in that case by the prosecution that anything done or ordered to be done under the Act would not mean any act in violations of the provisions of the Act. The Supreme Court observed that the complaint against the accused was that they wanted to evade payment of duty by using and affixing cut and torn banderols, by no proper maintenance of account books by showing shortage of banderol in stock and by keeping unbanderolled matches and it held that they are all infraction of the provisions in respect of things done or ordered to be done under the Act. As has been stated earlier, the provision of Sec. 40(2) of the Act has been completely recast mostly in order to restrict the provisions of the section to the officers of the Government and in that connection the ''word ordered to be done'' has also been removed. What remains is only ''anything done or purported to have been done in pursuance of Act''. If the revision petitioner is prosecuted for anything done or purported to have been done in pursuance Of, the Act, he can certainly claim shelter under the provisions of S.40(2) of the Act. In the present case, he is not prosecuted for any such thing. Therefore, the limitation embodied in Sec. 40(2) of the Act would not apply, in this case. Further the petitioner is instead prosecuted for offences under the various sections of the Indian Penal Code and under the provisions of the Prevention, of Corruption Act. Sec. 26 of the General Clauses Act reads as follows--

Provision as to offences punishable under two or more enactments:

Where an act, or omission, constitutes an offence under two or more enactments, then the offender, shall be liable to be prosecuted and punished under either or any of those enactments, but, shall not be liable to be punished twice for the, same offence.

Sec. 5(4) of the Prevention of Corruption Act reads as follows--

The provisions of this section shall be in addition to; and not in derogation of, any other law for the time being in force, and nothing contained herein shall exempt any public servant from any proceeding which might, apart from this section, be instituted against him.

Therefore, the prosecution under the Indian, Penal Code and the P.C. Act., would not fall within the mischief of Sec. 40(1) of the Act.

It was lastly contended by the Learned Counsel for the revision petitioner that the acts for which he is prosecuted would constitute only the violation of the provisions of the Central Excise and Salt Act and they would not fall within the mischief of the other provisions under which he now stands charged. This is a matter to be decided in the course of the trial. If the acts which will be proved against him do not constitute offences under the sections referred to in the charge, but only under the provisions of the Act, he could not be convicted because obviously at that time he would be saved by the provisions of sub-Sec.(2) of the Act. Therefore this contention also carries no merits whatsoever.

In the result, the revision petition is dismissed.