Matajog Dobey vs H. C. Bhari(With Connected Appeal) on 31 October, 1955
11. On the other hand in this case, as submitted by the Counsel for the respondent, the act of chasing the car, bringing the white Contessa car to a standstill, jumping into the car and trying to get control of the car may be said to be an act in pursuance of the Customs Act but killing a person is not a matter which has been protected under the Act. The learned Counsel for the respondent therefore submits that after the car coming to a standstill and getting into the car, there was no necessity for the accused to inflict knife injuries on the neck of the deceased to do discharge of any duties envisaged under the provisions of the Customs Act. The learned Counsel for the respondent also submitted that the act of the petitioner cannot also come under section 106 of the Customs Act. He submitted that even though section 106 gives power to the Customs Officers to fire at any conveyance or vehicle to bring the said vehicle to a halt, after stopping that vehicle inflicting fatal injuries on the person who is alleged to have been involved in the illegal activities, is not permissible under section 106 of the Customs Act. Therefore he submits that the petitioner is not entitled to protection under section 155 of the Customs Act. He also drew my attention to the decisions in Matajog Dobey v. H.C. Bhari, and Harbhajan Singh v. State of Punjab and another, . Relying on these decisions he argued that in order to enable the petitioner to take refuge under section 155 of the Customs Act, the burden is on the petitioner to prove that the act done or intended to be done should be in pursuance of the Customs Act and that the act done or intended to be done must be in good faith. Therefore the Counsel for the respondent submitted that taking all the materials into consideration, the Court below has exercised its discretion against the petitioner at that stage and asked the petitioner to face the trial. The Counsel for the respondent also submits that no harm has been done to the petitioner by the order of the Court below specially when the charge was allowed to be framed by the trial Court against the petitioner and, therefore, it was only lawful on the part of the learned District Judge to bring it to the logical end after the trial of the case. The learned Counsel for the respondent also brought to my notice the incriminating circumstances of disappearance of the accused abruptly from the scene and surrendering before the police after two days. Suspicious and doubtful circumstances were created by his own action of delayed surrender. He argued that this circumstance led to doubt the bonafide of the petitioner. Those two days appeared to be utilized by the Customs Department for preparing a defence after proper debate among the officers of the Customs in furtherance of the institutional defence afforded to the petitioner. Therefore he argues that unless the trial Court has been given an opportunity to appreciate the evidence to be adduced by the prosecution and the defence, the protection under section 155 of the Customs Act cannot be claimed by the petitioner. On these rival contentions, the relevant provisions of the Act and the materials available in this case, let us examine the legality or otherwise of the order passed by the Court below.