Andhra HC (Pre-Telangana)
Goondla Venkateswarlu vs State Of A.P. And Anr. on 29 March, 2006
Equivalent citations: 2006(1)ALD(CRI)916, (2007)5VST169(AP)
ORDER A. Gopal Reddy, J.
1. Petitioner-A1 filed this petition under Section 482, Cr. P.C. for quashing the proceedings initiated against him for the offence under Sections 448, 380, 384, 506, IPC in C. C. No. 356 of 1996 pending on the file of Additional Judicial First Class Magistrate, Karimnagar.
2. The second respondent-de facto complainant filed a compliant before the Magistrate and the same was referred to the police under Section 156(3), Cr.P.C. who after investigation filed a report before the Magistrate. On the protest application filed by the complainant, the Magistrate after recording the statement of the complainant took cognizance of the offence and issued process. On issuing process the petitioner filed Crl. M. P. No. 54 of 1997 seeking dismissal of the complaint alleging that in view of bar contained under Section 37 of the Andhra Pradesh General Sales Tax Act, 1957 read with Section 197, Cr.P.C. without prior sanction, petitioner, who was working as Assistant Commissioner (Intelligence) at the relevant time and who made the search of the business premises of the complainant in his official capacity, cannot be proceeded. Petitioner also filed Crl. P. No. 4006 of 1997 before this Court and obtained stay of prosecution and when the said criminal petition is taken up for hearing it was informed about filing Crl. M. P. No. 54 of 1997 for dismissal of the complaint. In view of the same, this Court disposed of Crl. P. No. 4006 of 1997 directing the Magistrate to dispose of the Crl. M. P. No. 54 of 1997 within three months. On such disposal Crl. M. P. No. 54 of 1997 was dismissed for default on April 21, 1997 and the said information has not been passed to the advocate at Hyderabad, which resulted in disposal of the Crl. P. No. 4006 of 1997. Therefore, present petition is filed for quashing the proceedings.
3. A reading of the compliant clearly discloses that the accused along with others raided the shop-cum-house of the complainant on October 24, 1994 from 7 to 9.30 pm and took away bill books, cheque books and records and also Indira Vikas Patras worth Rs. 2 lakhs forcibly without giving any acknowledgement or conducting any panchanama and forcibly obtained his signature on white paper and went away.
4. Learned Counsel for the petitioner submits that under Section 28 of the A.P. General Sales Tax Act, the Assistant Commercial Tax Officer authorised by the State Government will have power to order production of accounts and powers of entry, inspection, etc. Since the petitioner who has inspected the business premises knowing that documents are not properly maintained by the dealer seized the books, therefore, he cannot be prosecuted in view of the bar contained under Section 37 of the APGST Act and entire proceedings initiated against the petitioner are liable to be quashed.
5. Sri D. Bhaskara Reddy, learned Counsel for the second respondent, submits that the very fact the accused raided not: only the business premises but also house and took away Indira Vikas Patras without any acknowledgment and the same cannot be in discharge of official duties cannot claim protection under Section 37 of the APGST Act and also placed reliance on the judgment of the Supreme Court in P.K. Pradhan v. State of Sikkim .
6. It is convenient to consider the submissions made by the counsel on either side in the context of statutory provisions under the APGST Act.
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 particulars 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 authorised by the State Government in this behalf may for the purposes 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 offices, shops, godowns, vessels or vehicles shall be open to inspection by such officer at any time during the business hours prescribed under the relevant law for 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 dealer as he may consider necessary, and shall give 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 inquiry or proceeding under this Act:
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 purposes 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 no such hours are prescribed, at all reasonable times, any office, 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 being, keeping any goods, accounts, registers or other documents of his business.
Provided that no residential accommodation not being a shop-cum-residence shall be entered into and searched by any such officer below the rank of a 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.
(5) The power conferred by Sub-section (4) shall include the power to break open any 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, where any such goods, accounts, registers 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 clone 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.
7. The Supreme Court in P.K. Pradhan's case AIR 2001 SC 2547 : [2001] 2 ALD (Crl.) 332 after considering the legislative mandate engrafted in subsection (1) of Section 197, Cr. P. C. debarring a court from taking cognizance except with the previous sanction of the Government concerned in a case where the acts complained are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in discharge of his official duty and such public servant is not removable from office save by or with the sanction of the Government touches the jurisdiction of the court itself, held that the offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty.
8. In para 5 of its judgment it further held as under:
... There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a court has to find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in excess of the needs and requirements of situation.
9. Recently the Supreme Court in State of Himachal Pradesh v. M.P. Gupta AIR 2004 SC 730 : [2003] 8 Supreme 706 held that official act can be performed both in discharge of official duty as well as dereliction of duty even if the act done is in dereliction of duty to attract the bar under Section 197, Cr. P. C.
10. In the light of the law as aforesaid it has to be considered now whether the act done by the petitioner is in discharge of official duty or in dereliction of it.
11. Sub-section (3) of Section 28 referred to above clearly manifests that whenever an officer suspects the dealer he has to record the reasons in writing, seize such accounts, registers and other documents of the dealers as he may consider necessary and shall give the dealer a receipt of the same.
12. Sub-section (4) of Section 28 manifests that 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 no such hours are prescribed, all reasonable times. All searches under Sub-section (4) shall, so far as may be, be made in accordance with provisions of Cr. P. C. subject to the rules, if any, made in this behalf.
13. 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 petitioner before searching the business premises and residence of the complainant, it is for the petitioner/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 petitioner 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.
14. Criminal petition fails and it is accordingly dismissed.