Collr. of Customs, (Appeals) Vs. Renowned Auto Products Mfrs. Ltd. - Court Judgment

SooperKanoon Citationsooperkanoon.com/812851
SubjectCustoms
CourtChennai High Court
Decided OnApr-26-1996
Case NumberCrl. R.C. No. 162 of 1995
JudgeM. Karpagavinayagam, J.
Reported in1997(91)ELT545(Mad)
ActsCustoms Tariff Act, 1975
AppellantCollr. of Customs, (Appeals)
RespondentRenowned Auto Products Mfrs. Ltd.
Appellant AdvocateShri P.N. Prakash for ;Mr. R. Sunil Kumar, Adv.
Respondent AdvocateShri Ramachandran, Senior Counsel for ;Mr. George Cheviar
Cases ReferredIn Pukhraj v. State of Rajasthan
Excerpt:
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criminal - defamation - section 500 of indian penal code, 1860, sections 197, 204, 401 and 482 of criminal procedure code, 1973 and customs tariff act, 1975 - revision petition against order dismissing petition to drop proceedings against petitioner - petitioner-accused was public servant - section 197 applicable - cognizance taken by magistrate without sanction from government becomes invalid and void ab initio - order passed by court below liable to be quashed - proceedings against petitioner under section 500 quashed - revision allowed. - 
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order1. the petitioner dr. g. k. pillai, collector of customs, the accused in c.c. no. 8499 of 1994, on the file of xiv metropolitan magistrate, egmore, madras, has preferred this revision, against the order of dismissal, dated 24-2-1995 on his petition to drop the proceedings and to recall the summons issued in the above case by the magistrate. 2. the facts leading to the present revision need narration :- the complaint, renowned auto products ., has its factory premises at no. 122, sipcot, industrial estate, hosur. the complainant is dealing in the business of production and manufacture of shock absorbers and automobile spares.3. the petitioner/accused, through his subordinate officers conducted a raid in the factory premises of the complainant on 17-5-1994 and 19-5-1994. on the basis.....
Judgment:
ORDER

1. The petitioner Dr. G. K. Pillai, Collector of Customs, the accused in C.C. No. 8499 of 1994, on the file of XIV Metropolitan Magistrate, Egmore, Madras, has preferred this revision, against the order of dismissal, dated 24-2-1995 on his petition to drop the proceedings and to recall the summons issued in the above case by the Magistrate.

2. The facts leading to the present revision need narration :-

The complaint, Renowned Auto Products ., has its factory premises at No. 122, SIPCOT, Industrial Estate, Hosur. The complainant is dealing in the business of production and manufacture of shock absorbers and automobile spares.

3. The petitioner/accused, through his subordinate officers conducted a raid in the factory premises of the complainant on 17-5-1994 and 19-5-1994. On the basis of the materials collected from the premises during the raid, the Managing Director of the Complaint/company was interrogated. After perusal of the records, books of account, the complaint/company was asked to pay an ad hoc amount of Rs. 25 lakhs, towards the evasion of excise duty. But the Managing Director, who appeared before the department pleaded that the company had not evaded any payment of excise duty, and as such no amount could be paid. Then, the Managing Director of the company was arrested and sent for remand to the Court.

4. On 31-8-1994, the petitioner/accused, Customs Collector convened a press conference at his office and released a news items, containing the defamatory allegation and damaging the reputation of the complainant's company, which was published in the daily newspapers. The publication made in the newspaper is as follows :-

'Mr. Ranjit Pradap, Managing Director of Renowned Auto Products . had been arrested in the morning for evading Central Excise Duty of around Rs. 20 lakhs. The Company engaged in the manufacture of shock absorbers had manipulated invoices and credit notes and evaded excise.'

5. Since the above press publication was released by the accused to the reporters, the complainant Renowned Auto Products ., through its General Manager Mr. T. N. Panchapakesan, filed a complaint on 29-11-1994, before the XIV Metropolitan Magistrate, Egmore, Madras for an offence under Section 500 I.P.C., against the accused. On the complaint taken on file in C.C. No. 8499 of 1994, by the XIV Metropolitan Magistrate, process was issued to the petitioner/accused.

6. On service of summons the petitioner entered appearance before the trial Court and filed a petition in Crl. M.P. No. 189 of 1995 under Section 204 Cr.P.C., to recall the summons issued on various grounds. One of the main grounds urged in that petition was that the petitioner/accused being a public servant cannot be proceeded with for an offence under Section 500 I.P.C., in the absence of sanction under Section 197 Cr.P.C.

7. This application was objected by the complainant by filing a counter, stating that the act complained of, cannot even be considered as one inseparable connected with the duties of the accused and so the sanction was not necessary.

8. After hearing both the parties and on perusal of the petition, counter, complaint and other materials, the learned Magistrate passed an order on 24-2-1995, dismissing the petition, filed by the accused, holding that the question as to whether, sanction was necessary or whether the act was done in relation to discharge of the official duty can be looked into only at the time of trial. This order is now being challenged in this Court by the petitioner/accused.

9. Mr. Prakash, representing Mr. Sunil Kumar, learned Counsel appearing for the petitioner, through raised several points, mainly contended that the point of sanction has got to be considered, at the initial stage itself and that the Supreme Court has held that the order issuing the process being an interim order can be varied or recalled by the Magistrate himself, if the complaint on the very face of it does not disclose any offence against the accused.

10. Per contra, Mr. Ramachandran, learned Senior Counsel representing Mr. George Cheviar strenuously contended that the order of the Magistrate to the effect that the question of sanction could be considered only during trial after examination of the witnesses is valid in law, since the said order was passed on the strength of the judgment of the Supreme Court, referred to in the order itself. In short, learned Senior Counsel requests this Court, to confirm the order of the trial Court and to dismiss the revision. He further contended that since the Magistrate has not given any finding with regard to the question of sanction, the proceedings must be allowed to go on, to enable him to consider the question, after taking the evidence in the trial.

11. I have heard the rival submissions made by the respective parties, and perused the records viz. complaint, typesets filed by both the parties.

12. Section 197 Cr.P.C., provides that no Court shall take cognizance of any offence against any person who is a public servant not removable from his office, save 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, except with the previous sanction. There is no dispute regarding the fact that the petitioner/accused was a public servant, while this act had been committed. But the question now raised is whether it could be said that an offence under Section 500 I.P.C., has been committed, while acting or purporting to act in the discharge of his official duty.

13. Before delving deep into this question, let me analyse the submissions made by the respective parties. The submissions made before this Court, by the learned Counsel for the petitioner could be summarised as follows :-

(i) The jurisdiction for the Magistrate to take cognizance of an offence against the petitioner is pre-conditioned by obtaining of previous sanction from the Government of India, as the offence alleged is relatable to an act in the discharge of his official duty. The petitioner being the top most officer in the Central Excise Collectorate, has given this information to the press about the detection of the offence referred to above, in the discharge of his duty to keep the public informed that the department is acting efficiently and effectively in the detection of offences and to serve as a deterrent to others from committing such violations, and as such it is a bona fide act in discharge of his public duties.

(ii) When the jurisdiction is questioned, as a preliminary objection, the learned Magistrate should not have dismissed the petition, holding that the said issue could be decided only after the evidence was taken.

(iii) This preliminary issue which goes to the root of the question of jurisdiction to entertain the complaint has got to be decided, at the initial stage itself, since Section 197 Cr.P.C., provides the bar of jurisdiction in taking the cognizance of offence, in the absence of sanction from the Central Government of India. The notifications which have been issued by the Government would disclose that it is the bounden duty of the petitioner/accused to make the public informed through the press publication that the department is effectively engaging the detection of offences and evasion of duty, in order to serve as a deterrent to others from committing such violations. As such, Section 197 Cr.P.C., is very much applicable in this case. Consequently, the cognizance, taken by the Magistrate, without sanction becomes invalid and ab initio void.

14. The contentions by way of reply made by Mr. Ramachandran, learned senior counsel appearing for the respondent/complainant could be summarised as follows :-

The prayer part of recalling the summons or for discharging the complaint on the ground of immunity provided in Section 197 Cr.P.C., is wholly misconceived. The accused, being a responsible officer has to act within the ambit and scope of the statute and he should not do so beyond his jurisdiction and line of duty. Under Section 40 of the Central Excises and Salt Act, 1944, the accused can invoke the protection, only if the act is done in good faith and in pursuance of the Act made under the Rules thereof. In this case, since the accused is not entitled for immunity from prosecution in terms of Section 40 of the Central Excise Act, he cannot also seek protection under Section 197 Cr.P.C. The conduct of the accused in calling for a press conference at Hosur on 31-8-1994 and making a public statement, declaring that the complainant company had manipulated invoices and credit notes and evaded payment of Excise Duty to the tune of Rs. 20 lakhs and causing the matter widely published in several leading newspapers is not an act done in pursuance of any duty under Central Excise Act or Rules made thereunder, whereas it is an indirect violation of Section 9B and Rule 232A of the Central Excise Act, 1944.

15. Under Section 9B of the Act, where any person is convicted under the Central Excise Act, it shall be competent for the Court convicting the person to cause the publication of the name and place of business or residence of such person, nature of the contravention. Even this publication should be made, after conviction, that too only after the period of preferring an appeal is expired by the Court. Rule 232A of the Central Excise Act, 1944 relates to the powers of the Collector to publish in the official Gazette the names and address of the persons who have been convicted by a Court under Section 9 of the Act and on whom a penalty of ten thousand rupees or more has been imposed by such officer under Section 33 of the Act. Under this Rule also, no such publication should be made, until the period for preferring an appeal is expired. So the publication made by the petitioner/accused through newspaper was against the Rules, contemplated under Rule 232A of the Central Excise Act, and as such, the act complained of cannot be considered as one inseparable connected with the duties of the accused in pursuance of the provisions of the Act or Rules made thereunder. As such, there could be no connection between the act complained of and the official duty of the accused. Therefore, sanction is not necessary and the complaint was validly made.

16. It is at this stage, the reasons given by the trial Court for dismissing the application, in which a preliminary objection was raised, in the order dated 24-2-1995 are quite relevant to be mentioned which are as follows :-

'Whether sanction is necessary or protection is available to the accused could be looked into only after evidence is let in during the time of trial. Only during the trial, we can look into whether the act is done, in the course of discharge of this official duty and whether the act is done in relation to discharge of his official public duty'.

17. The learned Magistrate relied upon three decisions of the Supreme Court, viz. (i) Bhagwan Prasad Srivastava v. N.V. Mishra : 1970CriLJ1401 , (ii) Bakshish Singh Brar v. Gurmejkaure and Another 1987 SCC 663 and (iii) Ashok Sahu v. Gokul Saikaia and Another 1990 SCC (Supp) 41. In all these decisions, it has been observed, that the question of necessity of sanction could be considered only after recording some evidence.

18. On the basis of the respective submissions made by the parties and the grounds given by the learned Magistrate for dismissing the petition, this Court is called upon to decide whether the Magistrate is correct in saying that the question of sanction could be considered only after the evidence let in during the trial.

19. At the outset, I must say that under Section 197 Cr.P.C., the Magistrate has to look into the records, whether he is entitled to take cognizance of the offence, especially when the complaint is made by a party against the petitions a public servant, viz. Collector of Customs. The Apex Court and this Court as well, on several occasions held that especially when the contents of the complaint disclosed that the act of the accused was done while he was as public servant, the Magistrate is duty bound to decide the question, whether he is entitled to take cognizance, despite the bar under Section 197 Cr.P.C.

20. It is relevant to note that nothing has been mentioned in the complaint or in the sworn statement that the accused has made a publication not in the discharge of the official duty and so the sanction was not necessary. In the absence of those allegations, the learned Magistrate ought to have applied his mind, before taking cognizance. If he has properly applied his mind, even at the stage of cognizance the Magistrate would have definitely asked for the explanation from the complainant with regard to the question of sanction under Section 197 Cr.P.C., which actually bars the Magistrate from taking cognizance, without previous sanction. No clarification was sought for by the Magistrate before taking cognizance and there was no explanation in the complaint or in the sworn statement.

21. A mere allegation in the complaint that the petitioner, Collector of Customs made a press publication, informing the public about the arrest of the Managing Director of the complainant/company and the manipulation of records by the complainant to evade excise duty, would make it clear, that the said act was committed by a public servant. So, all the more reason, the Magistrate before taking cognizance, must have applied his mind by going through the question as to whether he was entitled to take cognizance, despite Section 197 Cr.P.C. This is not done in this case. Even after taking cognizance, when the petitioner/accused after entering his appearance filed an application under Section 204 Cr.P.C., for recalling the summon, and brought to the notice of the learned Magistrate, that the cognizance taken by the Magistrate was ab initio void, because of the non-obtaining of sanction, the Magistrate has not looked into that question, but simply dismissed the application, saying that the said question could be considered only during trial. This is, in my view, a gross failure on the part of the learned Magistrate, who ought to have looked into the question and to decide about the jurisdiction point.

22. If the Magistrate has considered the question of jurisdiction, even at the initial stage, on the basis of the materials available, he might have come to a conclusion that he had no jurisdiction to take cognizance of the complaint. In that event, the Magistrate need not spend further time by calling all the witnesses and examining them and to wait for a long period, till the Judgment is rendered ultimately.

23. Of course, the Apex Court, in similar cases, on the facts and circumstances, had held that the sanction is a mixed question of law and fact and this could be decided only during the course of trial after some evidence was taken. In some cases, this court as well the Supreme Court has quashed the proceedings even before the evidence are let in, on the ground, that the absence of sanction will make the entire proceedings ab initio void. So, there cannot be any hard and fast rule to say that the sanction point cannot be raised at the initial stage.

24. In fact, even in some decisions cited by learned Counsel for the respondent, the Supreme Court has observed that the sanction point could be decided at the earliest stage. So, the Magistrate has committed wrong in deferring the question of consideration of the necessity of sanction at the stage of post-trial. As such, I feel the order passed by the learned Magistrate is not valid in law and is liable to be set aside.

25. In Ramnath Goenka v. A.R. Raji 1982 Cri. L.J. 1153, M. N. Moorthy, J. of this court, on similar facts considered, when a complaint against Principal Information Officer, Government of India, was filed under Section 500 I.P.C., the question of sanction under Section 197 Cr.P.C., even at the initial stage. The relevant portion of the observation is as follows :-

'Where a complaint against Principal Information Officer, Government of India for an offence under Section 500 I.P.C., alleging that the 'hand outs' issued by him to the complainant, a newspaper magnate are only defamatory statements with intent to lower his estimation in the eye of general public and with malice aforethought, the previous sanction of Central Government under Section 197 Cr.P.C., is necessary for prosecution. Handing over of the hand outs for publication is undoubtedly characteristic of official duty of accused and there is reasonable connection between the act alleged and his official duty .... I have no doubt that the acts complained of are so interrelated with the official duty of the Principal Information Officer, so as to attract the protection afforded by Section 197 Crl.P.C. The acts are so integrally connected with the duty attached to the officer and it is not possible to separate them. What has been alleged against him is certainly something to do with his official duty. Under these circumstances,..... I feel the order passed by the learned Chief Metropolitan Magistrate is correct.'

This decision was rendered by this Court, while considering the validity of the order of the trial Court, which dismissed the complaint, on the preliminary issue, holding that sanction was necessary.

26. In K.V. Subbiah v. Chalapathi Rao 1971 L.W. (Cri.) 13, this Court while considering the question whether the accused could be discharged at any previous stage before the evidence is taken, has made the following observations :

'It is only reasonable that an accused person should be allowed to show at any stage of the proceedings that there is no case against him. For example, he might show that there was something in the nature of want of sanction which would render the entire proceedings invalid and in such a case it will be clearly a waste of time to examine the complainant or his witnesses. In a suitable case, the Magistrate may come to the conclusion that the charge is groundless even before he has heard complaint under Section 252 of the Code. In such circumstances, when he is satisfied that the offence alleged could not properly be sustained, he can discharge him under Section 253(2) and Sub-Section (3) gives him ample jurisdiction to make the order at any stage of the case...... Therefore, for a discharge under Section 253(2), recording of evidence is not necessary in case the complaint itself does not disclose an offence.'

27. In S.B. Saha and Others v. M.S. Kochar : 1979CriLJ1367 , the Supreme Court has held as below :-

'The question whether an offence was committed in the course of official duty or under colour of office depends on the facts of each case. One broad test for this purpose is whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office'.

28. In Sarjoo Prasad v. Emperor 1946 M.W.N. 19, a Federal Court, has made the following observations :-

'The materials with reference to which the applicability of Sec. 270(1) must be considered were indicated in the Judgment of this Court in Hori Ram Singh v. The Crown 1939 M.W.N. 497. It was pointed out by Sulaiman, J. that as the prohibition was against the institution itself the applicability of the sanction must be judged at the earliest stage of institution. The learned Judge then proceeded to say 'if the prosecution case as disclosed by the complaint or police report, as the case may be, shows that the act purported to be done in execution of duty, the proceedings must be dropped.'

29. In T.G. Nichodemus v. State 1954 M.W.N. 185, it has been held as follows :

'An accused person has a right to raise a preliminary objection to the maintainability of the complaint and to have it decided so that he may not be put to the necessity of undergoing a trial in case he succeeds on the preliminary objection. Where the complaint was that the offences under Sections 343, 348 and 330 IPC were committed by the accused in the course of his official duty as a police officer, while he was investigating into certain crimes, the complaint falls within the purview of Section 53 of the District Police Act. This is an obvious case covered by Section 53 of the Madras District Police Act, 1859, and does not present any difficulty. I must, therefore, hold that so far as the petitioner is concerned, the complaint is barred under Section 53 of the Madras District Police Act, 1859.'

30. In Matajog Dobey v. H.C. Bhari : [1955]28ITR941(SC) , the Supreme Court has held as follows :-

'Of course, if the case as put forward fails or the defence establishes that the act purported to be done is in execution of duty, the proceedings will have to be dropped and the complaint dismissed on that ground..... The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case.'

The same view has been expressed in Pukhraj v. State of Rajasthan and Another : 1973CriLJ1795 .

31. Even in the decisions referred to in the order of the lower Court, some observations have been made to substantiate the plea of the petitioner that his preliminary objection must have been considered at the earliest stage, which are as follows :-

(i) In Bakhshish Singh Brar's case (supra), the Supreme Court has observed that 'it is true that Section 197 Cr.P.C., 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'.

(ii) In Bhagwan Prasad Srivastava's case (supra), the Supreme Court has held as follows :-

'The object and purpose underlying this section is to afford protection to public servants against frivolous, vexatious or false prosecution for offences alleged to have been committed by them while acting or purporting to act in the discharge of their official duty. The larger interest of efficiency of State Administration demands that public servants should be free to perform their official duty fearlessly and undeterred by apprehension of their possible prosecution at the instance of private parties to whom annoyance or injury may have been caused by their legitimate acts done in the discharge of their official duty. This section is designed to facilitate an effective and unhampered performance of their official duty by public servants by providing for scrutiny into the allegations of commission of offence by them by their superior authorities and prior sanction for their prosecution as a condition precedent to the cognizance of the case against them by the courts. It is neither to be too narrowly construed nor too widely. Too narrow and pedantic construction may render it otiose for it is no part of an official duty-and never can be - to commit an offence. In our view, 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. I agree that want of sanction under Section 197 Cr.P.C., is a prohibition against institution of proceedings and the applicability of Section must be decided at the earliest stage of the proceedings.'

32. These decisions would reveal, that if materials are available on record to satisfy the Court that the act complained of is connected with the official duty of the accused, then the Court should not have the hesitation to decide about this point. So, the order of the learned Magistrate, dismissing the petition, without deciding the question is in my view amount to shirking of his duty. Even the decisions referred to by the learned Magistrate in his order, would say that if the Magistrate thinks fit, he should record some evidence to decide about the question of sanction and then decide the point. But the Magistrate has not done even that in this case, instead he has dismissed the application, holding that the question could be decided only after the entire evidence is taken in trial, which cannot be correct, in view of the above discussion and the principles laid down by this Court, other High Court and the Apex Court.

33. In K.M. Mathew v. State of Kerala and Another : 1992CriLJ3779 , the Apex Court while dealing with the case of defamation, has held that 'the accused, under Section 204 Cr.P.C., after entering appearance in response to the summons, can file an application requesting the Court to recall the summons and to drop the proceedings, and the Magistrate is well within his powers to do the same, if the Magistrate is convinced that he has no jurisdiction to proceed against the accused, and as such, it is open to the accused to plead before the Magistrate that the process against him ought not to have been issued and that the Magistrate can drop the proceedings, if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried and that he has no jurisdiction to proceed the case'. So, as per this decision, the Magistrate should have considered this question at the earliest stage, without dismissing the same on the ground that he could decide about that question only during the trial. This is clearly wrong in view of the above referred to Judgment of the Supreme Court.

34. At this point of time, learned Counsel for the petitioner brought to my notice, the notifications issued by the department, dated 18-5-1984 and 20-8-1985, permitting the Collector of Customs to make the press publication, which are as follows :-

(i) Notification dated 18-5-1984 :

'The existing arrangements for giving publicity to anti-smuglling measures have been reviewed by the department.

Though several major seizures have been made by the Collectorates in the recent past, it had been found that news about these seizures do not get sufficient publicity in the national dailies nor broadcast in the All India Radio/Doordarshan bulletins. Generally such seizures get reported only in certain local newspapers. As no press release as such is issued by the Collectorates most of the national news agencies like PTI/UNI and Samachar, etc. are also not in a position to disseminate the news about such important seizures. Even when news items on major seizures are published in the national dailies it is in the nature of some disjointed happenings. In that context the AIR and Doordarshan have observed that the departmental authorities do not pass on such important news to their representatives in time. As a result of all these, the activities of the department do not get sufficiently projected in any of the media.

As you are aware, the main purpose behind giving publicity to seizures is not so much to publish bare statistics but to project the efforts put in by the department suitably and effectively so that a general public awareness is created about the anti-social aspects of smuglling and tax evasion. In order to achieve this vital task you are requested to ensure adequate and appropriate publicity in all major cases of seizures of contrabands of Rs. 10 lakhs and above and of adjudications, convictions relating to such cases and detentions of major smugglers and their associates. A copy of the press release should be promptly supplied to AIR and Doordarshan as well as various national news agencies apart from the local newspapers. In view of the sensitive nature of this work, it is necessary and desirable that such publicity is organised at the level of Collector. Wherever facilities are available, adequate opportunity should be given to the representatives of AIR and Doordarshan to cover various aspects of the Anti-smuglling work so that public awareness on the anti-social aspects of smuglling is created. Ministry may please be kept informed from time to time about the action taken by you in this regard.'

(ii) Notification dated 28-8-1985 :

'Please refer to the correspondence resting with my D.O. letter of even number dated the 18th May, 1984, regarding the need to give adequate publicity to anti-smuglling measures.

Some instances have come to the notice of the Board wherein the hand-outs given to the Press in seizure cases contain details such as names of the parties involved/apprehended, names of officers, complete details of the seizure, modus operandi adopted for smuglling etc. which should not normally be disclosed to the Press at that stage. You will appreciate that in major cases of fraud etc. detected, vital details if divulged to the press immediately after the detection of the case, apart from producing undesirable consequences, may jeopardise further investigations in the cases. The main purpose behind giving publicity to seizures is not so much to publish these details but to project the efforts put in by the department suitably and effectively so that general public awareness is created about anti-social aspects about smuggling and tax evasion. For this purpose it is not necessary to disclose all vital details of the case at the seizure stage. There is, therefore need to exercise more caution in issuing hand-outs to the Press and in view of the sensitive nature of the work, it should invariably be handled by the Collectors personally so that in major cases vital details are not disclosed prematurely to the Press/other medias of publicity.'

35. Though no dispute has been raised on the genuineness of these documents, learned Counsel for the respondent contended that even according to the notifications referred to above, no name of the person should be mentioned in the press publication. But one thing is clear, the act of press publication by the Collector is permitted under these documents, the genuineness of which are not challenged before this Court. In the light of this, I feel, that there are materials available to consider, the question as to whether the sanction is necessary under Section 197 Cr.P.C. in this case.

36. Rule 232A of the Central Excise Act, as referred to by the Senior Counsel, appearing for the respondent, could be applicable, only for the Gazette notification, after conviction or after the penalty imposed. That would not be applicable to this case, because as per the notifications referred to above, even at the investigation stage, the Collectors of Customs are entitled to make a press publication, in order to prevent further crimes in relation to the evasion of excise duty. As such, the act of press publication becomes part of the duties enjoined upon the Collector of Customs. When such is the case, the only conclusion that could be arrived at by this Court is that sanction under Section 197 Cr.P.C., is necessary. Though I am called upon to decide only about the legality of the order of the learned Magistrate, since there are materials available on record in this Court, which are not at all disputed, especially the notifications vesting the powers on the Collector of Customs to make press publication, I feel that the cognizance taken by the learned Magistrate is illegal, ab initio void and the entire proceedings had to be quashed.

37. In this Context, the Judgment rendered by the Apex Court in R. Balakrishna Pillai v. State of Kerala and Another 1995 (4) Crimes 704, is quite relevant. Hon'ble A.M. Ahmadi, CJI. while delivering the Judgment on behalf of the Bench, has elaborately considered this question and made the following observations :-

'Our attention was next invited to a three-Judge decision in B. Saha & Ors. v. M.S. Kochar : 1979CriLJ1367 . The relevant observations relied upon are to be found in para 17 of the Judgment. It is pointed out that the words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed Section 197(1) of the Code, are capable of both a narrow and a wide interpretation but their Lordships pointed out that if they were construed too narrowly, the section will be rendered altogether sterile, for, 'it is no part of an official duty to commit an offence, and never can be'. At the same time, if they were too widely construed, they will take under their umbrella every act constituting an offence committed in the course of the same transaction in which the official duty is performed or is purported to be performed. The right approach, it was pointed out, was to see that the meaning of this expression lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection. Only an act constituting an offence directly or reasonably connected with his official duty will require sanction for prosecution. To put it briefly, it is the quality of the act that is important, and if it falls within the scope of the afore-quoted words, the protection of Section 197 will have to be extended to the concerned public servant. This decision, therefore, points out what approach the Court should adopt while construing Section 197(1) of the Code and its application to the facts of the case on hand'. These principles have been laid down by the Apex Court, while dealing with the question as to whether under Section 197 Cr.P.C., the sanction for prosecution is required or not against Minister for Electricity, State of Kerala, for having allegedly committed the offence of criminal conspiracy in selling electricity to an industry in the State of Karnataka, without the consent of the Government of Kerala. The Supreme Court further held that since the act was committed, which was directly and reasonably connection with his official duty as Minister, that would attract the protection under Section 197 Cr.P.C.

38. I feel that this case is squarely applicable to the facts of the present case. As referred to earlier, the notifications give the details of the guidelines to the Collectors of Customs and impress upon the necessity for making the publication through press, to make the public aware of the effective functioning of the Customs department, in order to prevent the commission of evasion of excise duty. So, giving a press publication through Press Reporters is an act, which is directly or reasonably connected with the official duty of the petitioner, and which requires sanction for prosecution.

39. In Pukhraj v. State of Rajasthan : 1973CriLJ1795 , the Supreme Court has observed as follows :-

'The section is not restricted only to cases of anything purported to be done in good faith for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in the execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by any one else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty. The section cannot be confined to only such acts as are done by a public servant directly, in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty.'

40. In that view of the matter, besides the revision power under Section 401 Cr.P.C., I invoke the inherent powers under Section 482 Cr.P.C. and I set aside the order of the learned XIV Metropolitan Magistrate, Egmore, Madras, made in C.C. No. 8499 of 1994, dated 24-2-1995, and I quash the entire proceedings against the petitioner under Section 500 I.P.C., as there is no valid sanction. Accordingly, the revision is allowed and the proceedings against the petitioner under Section 500 I.P.C., are quashed.