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CASE NO.: Appeal (civil)  2904 of 2007

PETITIONER: State of Madhya Pradesh & Anr

RESPONDENT: Bachha Lal & Anr.

DATE OF JUDGMENT: 21/06/2007

BENCH: Dr. ARIJIT PASAYAT & ALTAMAS KABIR

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO.  2904     OF 2007 (Arising out of SLP (C) No. 8270 of 2005)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is the order passed by a learned  Single Judge of the Madhya Pradesh High Court. Challenge  before the High Court was in a Misc. Appeal in Civil Revision  which has later converted to the Misc. Appeal relating to the  judgment dated 15.11.1995 in Civil Suit No. 4-B/92 passed by  a learned Second Additional District Judge, Shahdol deciding  issue No. 7 framed in the suit.

3.      Background facts in a nutshell are as follows:

Plaintiffs/respondents are brothers carrying on business  in partnership at Shahdol. Appellant No.2 at the relevant time  in the year 1981 was Sales Tax Officer in the employment of  appellant No.1 State of Madhya Pradesh. It was averred by the  plaintiffs respondents that the appellant No.1 in order to  extract illegal gratification and to pressurize the respondents,  misusing the office, conducted illegal search and seizure under  the provisions of M.P. General Sales Tax Act, 1958 (hereinafter  referred to as ’Act’ for short). He also raised heavy demands of  tax and penalty and also got revocation of the Sales Tax  registration certificate of the appellants. The respondent No.1  also lodged a report under Section 353 of Indian Penal Code,  1860 (in short ’I.P.C.’) with the police, resulting in prosecution  of respondent No.2.   However, he was subsequently acquitted. The  respondents, therefore, claimed damages on account of  malicious prosecution, as would be clear from para 10 of the  plaint.

The defendants/appellants resisted the claim. They  averred that the report lodged by defendant/appellant No.1  was not true. It was based on falsehood. It was also pleaded  that the suit was barred in view of provisions of Section 48 of  the ’Act’

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4.      The learned trial Court framed several issues including  Issue No.7 as to whether the suit was not maintainable as  against the defendant No.2 in view of Section 48 of the Act.

5.      Initially the case was fixed for recording evidence on all  the issues. However, subsequently the prayer of the appellants  to try Issue No.7 as above a preliminary issue, was accepted  and after hearing the parties on the said issue trial court held  that the suit to be not maintainable.   

6.      The trial court held that the basic grievance of the  present respondents related to action of the present  appellants’ officials in making search and alleged obstructions  in the official duties. It was therefore held that the suit was  not maintainable since permission of the State Government is  required under Section 48 of the Act. Accordingly the trial  court directed that suit be permitted to be withdrawn under  Order 23 Rule 1(3)(a) of the Code of Civil Procedure, 1908 (in  short the ’CPC’)  with a liberty that they may institute fresh  suit after obtaining necessary permission from the State  Government.

7.      There was a challenge by respondents on the ground that  the cause of action as has been shown in the plaint was based  on malicious prosecution on the basis of the report of the  defendant No. 2 under Section 353 IPC and, therefore, the  question of seeking permission under Section 48 of the Act  does not arise.    8.      The High Court accepted the plea and held that Section  48 had no application.

9.      In support of the appeal it is submitted that a bare  reading of Section 48 makes the position clear that the High  Court’s judgment is unsustainable.

10.     Learned counsel for the respondent on the other hand  submitted that in a case relating to malicious prosecution the  analogy of Section 197 Cr.P.C. had to be applied and the Act  has nothing to do with said jurisdiction.

11.     Section 48 of the Act reads as follows:

"(1) No suit, prosecution or other  proceedings 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. (1-a) 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 function entrusted to him by or  under this Act. (2) No suit shall be instituted against the  State Government and no prosecution or suit  shall be instituted against any servant of the  State Government in respect of any thing done  or intended to be done under this Act unless  the suit or prosecution has been instituted  within three months from the date of the act  complained of: (Provided that in computing the period of

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limitation under this sub-section, the time  taken for obtaining sanction under sub-section  (1) shall be excluded.)"

12.     The language of Section 197 Cr.P.C. is somewhat  different.  The language used in Section 48 of the Act relates to  acts done or intended to be done under the Act.  Further sub- section 1(a) of Section 48 provides that no officer or servant of  the State Government would be liable in respect of any such  Act referring to acts referred to in sub-section (1) for which act  was done in good faith in the course of execution of duty  imposed on him or discharge of function entrusted to him by  or under the Act, and the power relates both to Civil and  Criminal proceedings.  Undisputedly a raid was conducted.  It  appears that the raid was purportedly conducted under  Section 29 of the Act. It is to be noted that the requirements  are absolute in terms of Section 48 of the Act. It was  highlighted by learned counsel for the respondent that a bare  perusal of the order of acquittal passed shows that the  acquittal was purportedly recorded on the basis of findings  that the accused prevented the officials to make search and he  abused the Sales Tax Officer and its subordinates. Only on the  basis of alleged abuse and threat to him Section 353 IPC was    invoked. The reasoning related to non-recording of reasons  before the search. Correctness of such a view is open to doubt  but that has really no relevance so far as present dispute is  concerned. Undisputedly the acts done were in discharge of  duties entrusted under the Act.  That being so the trial court  was justified in holding that Section 48 of the Act is clearly  applicable. The High Court has not considered the relevant  provisions of law in the proper perspective.  The judgment of  the High Court is accordingly set aside.

13.     Appeal is allowed. Costs made easy.