Rajasthan High Court - Jaipur
Nanu Ram vs State Of Rajasthan And Anr. on 4 June, 2002
Equivalent citations: RLW2003(2)RAJ1382, 2002(3)WLN704
JUDGMENT Harbans Lal, J.
1. This petition under Section 482 Cr.P.C. is directed against the order dated 15.6.2001 of the learned Sessions Judge, Bhilwara in Criminal Revision No. 136/2000 whereby the revision has been partly allowed and the order dated 20.11.2000 passed by the learned Chief Judicial Magistrate, Bhilwara so far as it pertained to the taking of cognizance against Jamnalal Somani for the offences under Sections 452, 323, 342, 166 read with Section 120-B I.P.C. was set aside but the order as regards other accused persons was upheld.
2. Briefly stated, the relevant facts are that on 11.9.2000 Smt. Mansukh, the complainant, filed a complaint in the court of the learned Chief Judicial Magistrate, Bhilwara against Jamnalal Somani, Assistant Excise Officer, Bhilwara, petitioner Nanuram Khatik, Excise Inspector, Bhilwara and Ramesh Parasar, Excise Guard, Bhilwara with the allegations that on that day she was in her house. Her husband was taking meals. At about 11-12 noon the above said accused persons after making preparation to beat came armed with Lathis in a jeep and after entering into her House started beating her husband Arjun Lal. When she tried to intervene, they pushed her aside by pulling her lock of hair. The accused persons without showing warrant of search took search of her house. They broke open the door of a room of the landlord situated in the same premises and searched the same but found nothing. Still they took away her husband Arjun Lal saying that they would involve him in a false case. The learned Chief Judicial Magistrate, Bhilwara after preliminary inquiry under Section 200/202 Cr.P.C. took cognizance against the accused persons for the aforesaid offences on 20.11.2000. Aggrieved by the said order, they filed a revision No. 136/2000 in the court of learned Sessions Judge, Bhilwara wherein the impugned order was passed which is under challenge by the petitioner in this petition.
3. The main contention of learned counsel for the petitioner is that the illicit liquor was seized by Jamna Lal, Assistant Excise Officer, Bhilwara and other accused persons were only members of the raiding party who had done no overtact and the learned revisional court has grossly erred in law in not accepting the revision of the petitioner and others in spite of the fact that it is trite law that if sanction is required for one accused who is superior officer and other accused persons who are acting under his orders and directions are also entitled to protection against prosecution. In this regard, he has also drawn my attention to Section 73 of the Rajasthan Excise Act, 1950.
4. Learned Public Prosecutor could not rebut the contention of the learned counsel for the petitioners. No one has appeared on behalf of non-petitioner No. 2 despite service of notice.
5. I have given my anxious and thoughtful consideration to the submission made at the Bar and have also gone through the impugned order. At the outset, it may be apposite to extract Section73 of the Rajasthan Excise Act, 1950, which reads as under:-
"73. Bar on Certain suits- No suit, prosecution or other legal proceedings shall lie against the State Government or against nay officer or person for anything in good faith done or intended to be done in pursuance of this Act."
6. A bare perusal of this Section reveals that any action taken or intended to be taken in good faith under the Act by any officer or other person has been protected against civil suit, prosecution or other legal proceedings.
7. This provision is almost identical to Section 108 of the Gold (Control) Act, 1968, which runs as under:-
"No suit, prosecution or other legal proceedings shall lie against the Central Government, Administrator, any Gold Control Officer or any person authorised by the Central Government or the Administrator for performing any functions under this Act, for anything which is in good faith done or intended to be done under this Act or any rule or order made thereunder."
8. In the case of Bhappa Singh v. Rampal Singh and Ors., AIR 1982 SC 779, 1982 Cr.L.J. 627 the charge levelled by the complainant against the accused was that they had raised his jewellery shop on 12.6.1975 and simultaneously trespassed into the Chaubara of an adjoining shop in which Gurdev Singh, son of the appellant, was carrying on cloth business and they came into two groups. One group hurled abuses at the appellant and his people and demanded a bribe while the other group entered the cloth shop and rushed into the Chaubara upstairs, where they fired shots in order to commit dacoity. Their Lordships repelling the contention of the learned counsel for the appellant complaint that the actions of the respondents accused were nothing, short of an attempt to commit murder, for which there was no valid excuse, held that accepting the argument would amount to giving a go-bye to Section 108 of the Gold (Control) Act, if cases of this type were allowed to be pursued to their logical conclusion, i.e. to that of conviction or acquittal. In this case the High Court had quashed the criminal proceedings against the officers of the Excise and Custom Department for the offences under Section 307, 452, 504, 342 and 148 read with Section 149 I.P.C. and the Hon'ble Supreme Court declined to interfere with the order of the High Court in the facts and circumstances of the case.
9. Similarly, the provisions' of Section 155 of the Customs Act, 1962 are also identical with the provisions of Section 73 of the Excise Act. Section 155 of the Customs act, 1962 are also identical with the provisions of Section 73 of the Excise Act. Section 155 of the Customs Act, 1962 runs as under:-
"Section 155. Protection of action under the Act. (10 No suit, prosecution or other legal proceedings shall lie against the Central Government or any officer of the Government or a local authority for anything which is done, or intended to be done in good faith, in pursuance of this Act or the rules or regulations."
10. This provision came to be considered in the case of Costao Fernandes v. State at the instance of D.S.P., C.B.I. Bombay, 1996 Cr.L.J. 1723 where the Preventive Officer of the Customs Department on the basis of source information was keeping a vigil on the apprehended smuggling activities and having located the deceased speeding away with smuggled goods in a contessa car, chased him on his motor cycle and attempted to stop the vehicle but he was resisted by the deceased driving the said car whereupon he fired at him to immobilise him as a result of which he died. It was argued that the appellant was not entitled to claim protection against initiation of criminal trial for causing death of the driver of the vehicle under Section 155 of the Customs act because Section 106 of the Customs Act authorised him to take such an action as was confined to stopping the vehicle and not beyond that. Repelling the contention and relying upon the above authority in the case of Bhappa Singh it was held that the concerned officer was authorised to prevent smuggling activities and infact had bonafidely acted in exercise of his duties an d functions in preventing the smuggling activities being carried or about to be carried and had honestly attempted to stop the conveyance for effecting search of the same and that such an attempt to stop the vehicle was sought to be frustrated either by not stopping the vehicle or by attempting to forcibly taking away the vehicle despite attempt by the concerned officer to stop the vehicle. Recourse by him to use of force on the driver or occupant of the vehicle was apparently necessary to immobilise the vehicle or to save him from imminent danger of personal risk and the appellant was held entitled to protection under Section 155 of the Customs Act. It was observed by His Lordship Hon'ble Justice B.L Hansaria (as he then was) as under:-
"A valiant and dutiful custom officer risked his life to fight the mighty underworld of sumugglers, unarmed and single- handedly. And see he succeeded after hot chase on his motorcycle-smuggler being in a car. The result was that smuggling of goods worth Rs. 8 crores was prevented. The reward? He has been made to face a prosecution under Section 302 IPC at the behest of C.B.I., who has brought hurriedly and for undisclosed reasons to investigate, in as much as in the scuffle which had taken place between the appellant official and the suspected smuggler, during the course of which a big-sized knife (dagger) carried by the run away was used, the smuggler died, because of the injuries sustained at the hand of appellant, who had as many as 22 injuries on his person."
11. In the case of Jeeva Ram and Ors. v. Madan Lal and Anr., 1985 RLR 588, 1985 RLW 433 where the Municipal Council revoked the licence and removed the stall of the complainant despite temporary injunction be the civil court in his favour and where sanction for prosecuting under Section 197 Cr.P.C. was found necessary against the Administrator and the City Magistrate, it was held that cognizance could not be taken against the Overseer of U.I.T. because he was action under their directions. The same view was reiterated in case of Ganesh Singh and Ors. v. State of Rajasthan, 1986 RCC 354 and Kishan Singh v. Peeru Lal, 1997(2) RLW 1396.
12. In view of the law laid down in the aforementioned authorities, the petitioner and other co-accused persons namely, Ramesh Parashar and Ramesh Parashar (who have not filed any petition in this Court) were admittedly members of the raiding party headed by Jamnalal, Assistant Excise Officer, Bhilwara and no overt act to any of these persons has been ascribed except omnibus allegations against ail of them for the offences under Section 452, 323, 504, 354, 166 and 120B, IPC and they appear to be acting in good faith, under the directions of the senior officer and in view of clear provision of Section 73 of the Rajasthan excise Act, no prosecution can lie against them and the criminal proceedings pending against them deserve to be quashed. Although Kamlesh Parmar and Ramesh Parashar have not moved this Court under Section 482 Cr.P.C. but this Court in Satish Kumar and Ors. v. State of Rajasthan, 2001 Cr.L.J. 4860 had held on the strength of authorities of Hon'ble Apex Court in the case of Ajit Singh v. State of Haryana, 1996 (2) JT (SC) 234 and Kameshwar Singh and Rambabu Singh v. State of Bihar, 1992 (6) JT (SC) 85 that co-accused who has not preferred any appeal against his conviction, shall also be entitled to same benefit of modification of sentence. So, following the same analogy, kamlesh Parmar and Ramesh Parashar who have not preferred any petition shall also be entitled to benefit of quashing Of the proceedings against them.
13. In the result, this petition is allowed and the order dated 15.6.2001 of the learned Additional Sessions Judge, Bhilwara so far it pertains to this petitioner and other two petitioners, namely, Kamlesh Parmar and Ramesh Parashar, is set aside and the proceedings pending against them in the Court of learned Chief Judicial Magistrate, Bhilwara in Criminal Case No. 49/2000 are hereby quashed.