Vs. State of A.P. & ANR.  INSC 1417 (25 August 2008)
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
Dr. ARIJIT PASAYAT,
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
was to quash the proceedings before learned Additional Judicial Magistrate,
First Class, Karimnagar in CC No.356/96.
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 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.
5 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 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.
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
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 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
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.
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:
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 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:
12 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
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.
(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.
37 like Section 197 Cr.P.C. aims at preventing vexatious prosecution and
proceedings against public servants.
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.
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.
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.
Maharajadhiraja Madhav Rao Jivaji Rao Scinida Bahadur of Gwalior etc. v. Union
of India and Anr. 1971 (1) SCC 85).
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)
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.
Rakesh Kumar Mishra v. State of Bihar and Ors. (2006 (1) SCC 557) it was
observed as follows:
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 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."
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 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
(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
(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."
the factual scenario goes to show the proceedings were nothing but abuse of the
process of law.
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
..........................................J. (Dr. ARIJIT PASAYAT)
(Dr. MUKUNDAKAM SHARMA)
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