Subramaniam and Others vs K. Sankara Asari

Sathar Sayeed, J.—This Criminal Miscellaneous Petition is filed by the petitioners to quash the proceedings in C.C. No. 48 of 1977 on the

file of the Chief Judicial Magistrate, Tirunelveli. The short facts of the case are that the respondent in the Criminal Miscellaneous Petition 4741 of

1977 has filed the above complaint in C.C. No. 48 of 1977 against the petitioners who are the Excise Department Officers. According to the

respondent (complainant) on 20th December 1976, at about 3 A.M- the petitioners (accused) came to his house and took him away from his

house without any reason to the house of one Sait in Moolakadai bazaar, Tirunelveli. He further contends that a false mahazar was prepared and

currency notes amounting to Rs. 20,000/- were thrusted on him. Thereafter, the signature of the respondent was obtained under threat and

coercion on a blank paper. He further states that at 11 A.M. on that day the petitioners have taken him to the Karunanidhi Kalyana Mandapam

which was situate at Tirunelveli and a confessional statement was recorded from him under threat and duress. He also alleges in his complaint that

he was beaten by the petitioners. Therefore, C.C. No. 48 of 1977 was filed against the Customs Officers who are the petitioners in the Crl. M.P.

No. 4741 of 1978 under Ss. 147,342, 330 read with S. 149, I.P.C. When the case was pending before the Chief Judicial Magistrate, the Special

Central Government Prosecutor has raised a preliminary objection on the ground that the offence is said to have been committed under the

Customs Act and therefore, it requires sanction. The Special Central Government Prosecutor further contends that these offences are said to have

taken place during the course of performing their duties and therefore, they are entitled to protection under S. 155 of Central Act 52 of 1962. The

Chief Judicial Magistrate after hearing the preliminary objection raised by the Special Central Government Prosecutor dismissed the petition 1977

Crl. M.P. 650 of on the ground that the preliminary objection is not sustainable. According to him the respondent (complainant) has produced a

medical certificate to show that he was beaten and therefore, prima facie it presumes that this is a matter which has to be gone into by the Court.

Relying on certain decisions of this Court and also of the Kerala High Court the learned Magistrate overruled the preliminary objection raised by

the petitioners herein. In view of this order in Crl. M.P. No. 650 of 1977 in C.C. No. 48 of 1977 d. 13th May 1977 the petitioners have filed the

prevent Criminal Miscellaneous Petition No. 4741 of 1977 ,tp quash the proceedings of the Chief Judicial Magistrate, Tirunelveli.

The Counsel appearing for the petitioners contend that the petitioners are all officers of the Central Excise Department and that in the course of

the discharge of their duties, they have committed the acts as alleged by the respondent and they are entitled to be protected under S. 155 of the

Central Act 52 of 1962. He also contends that the petition is maintainable in view of S. 197 of the Code of Criminal Procedure.

On going through the order, prim facie I find that the Chief Judicial Magistrate has decided to overrule the objections raised by the petitioners.

In fact, in paragraph 3 of the order, the learned Magistrate has stated that the preliminary objection raised by the counsel for the petitioner is

overruled and the petition is dismissed. This will amount to a final decision. I am of the view that the petitioners are entitled to raise this point, at the

time when the enquiry takes place. lam of the view that the petitioners are entitled, after evidence, to raise this point, namely, the protection under

S. 155 of the Customs Act and also the protection under S. 197 of the Crl. P.C. for the acts done in good faith.

As far as the sanction is concerned, the Supreme Court in Pukhraj v. State of Rajasthan AIR 1973 S.C. 2501 has held:

The need for sanction it not to be considered as soon as the complaint is lodged and on the allegations therein contained. Whether sanction is

necessary or not may have not to be determined from stage to stage

Keeping this in view and also the provisions of S. 155 of the Customs Act, it will not he correct to deny the petitioners to raise these objections at

the time of the trial of this case. The petitioners are entitled to raise these objections at the time of trial and the Magistrate will go into the merits of

the case and also consider the objections raised by the petitioners. The overruling of these objections by the Chief Judicial Magistrate is not

proper. Therefore, the order in Crl. M.P. No. 650/77 in C.C No. 48 of 1977 on the file of the Chief Judicial Magistrate, d. 13th July 1977 is set

aside and the Magistrate is directed to dispose of the matter as early as possible on receipt of records by him. It will be open to the petitioners to

raise the objections raised by them in Crl. M.P. 650 of 1977 before the Chief Judicial Magistrate at the time of the trial of C.C. No. 48 of 1977.

In the result, with the above observations, the Criminal Miscellaneous Petition (Crl. M.P. 4742/1977) is dismissed.