REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITON

CRIMINAL APPEAL NO. 1342  OF 2008 (Arising out of SLP (Crl.) No. 4135 of 2006)

Goondla Venkateswarlu …Appellant

Versus

State of A.P. and Anr. …Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned

Single Judge of the Andhra Pradesh High Court dismissing the

petition filed by the appellant under Section 482 of the Code

of Criminal Procedure, 1973 (in short ‘Cr.P.C.’).   The prayer

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was  to  quash  the  proceedings  before  learned  Additional

Judicial Magistrate, First Class, Karimnagar in CC No.356/96.

3. Background facts as projected by the appellant  are  as

follows:     

The  appellant,  at  the  relevant  time  in  1994,  i.e.

24.10.1994,  was  working  as  Assistant  Commissioner  of

Commercial Taxes. He alongwith his subordinate staff went to

the business premises belonging to the respondent no.2 for

carrying  out  an  inspection  during  business  hours.   The

premises  were  registered  business  premises  of  M/s.  Rajani

Fireworks whose proprietor is the son of the respondent no.2.

The officials went to the premises at 5 p.m. on 24.10.1994.  In

the  same  business  premises,  the  documents  and  business

stocks relating to Kasanagottu Srisailam and Bros. were also

noticed.   During  the  inspection,  the  son  of  the  respondent

no.2 alongwith one Sri. Kasanagottu Satyanarayana said to be

one of  the partners of  Sri  Kasanagottu Srisailam and Bros.

were available.         

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A statement of inspection was recorded.  The statement

was recorded by the appellant on a request of the son of the

respondent no.2 on his business letter pad.  The statement

was written by the son of the respondent no.2 on his own,

wherein he duly declared that the shop has been inspected

that day at 5.30 p.m. and that till the date of such inspection

i.e.  24.10.1994,  he  had  not  written  any  of  the  books  of

accounts relating to his business and that he did not even give

the  returns  for  the  year  1993-94  and also  that  he  did  not

issue any sale bills.

As  far  as  the  stocks  and  documents  relating  to  M/s.

Kasanagottu  Srisailam  and  Bros.,  Mr.  Kasanagottu

Satyanarayana stated that he was one of the partners and he

gave a statement on his letter head in his own hand writing,

only declaring that till the date of inspection i.e. 24.10.1994

he  did  not  write  any  books  of  accounts  relating  to  his

business.  He  also  declared  in writing that  he is  giving  178

slips containing the transactions relating to his business for a

detailed examination by the appellant.    

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The slips were not seized by the appellant but they were

submitted on their own by the owners of the business.  Since

the accounts books were not written by them, these slips were

filed before the appellant for a subsequent examination, which

was on their own volition.

The stock book was signed and returned. No cash was

recovered.  

The son of the respondent no.2 visited the office of the

appellant  and  declared  that  due  to  ill-health  of  his  grand

mother he was seeking extension upto 30.10.1994.  This was

given in writing by the son of the respondent no.2 who is the

proprietor of the business premises in respect of M/s. Rajani

Fireworks.

On  three  dates,  i.e.  7.11.1994,  15.11.1994  and

25.11.1994, the son of the respondent no.2 and Kasanagottu

Satyanarayan came to the office of the appellant but failed to

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give  any  proper  explanation  for  the  business  transaction.

Thereafter the matter had been taken up and best judgment

assessment was completed.    

After a period of three months after the inspection, i.e. on

24.1.1995,  the respondent  no.2 herein filed a complaint  for

alleged  commission  of  offences  punishable  under  Sections

448,  380,  384 and 506 of  the Indian Penal  Code,  1860 (in

short  ‘IPC’)  before  the  Judicial  Magistrate,  Ist

Class,Karimnagar,  stating that  the  appellant  along  with  his

subordinate, have taken away the bill  books, cheque books,

records and also Indira Vikas Patras (for short ‘IVPs’)  worth

Rs.2  lacs  forcibly  without  giving  any  acknowledgement  and

without  conducting  panchanama  duly  intimidating  his  son

and forcibly taking the signatures of his son on white papers

with an intention to extract Rs.3 lacs.   

In the complaint it  was mentioned that the shop-cum-

residence  was  inspected  on  24.10.1994  and  the  time  of

inspection was 7 - 9.30 p.m.

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In the sworn statement he mentioned it as 3 p.m. as the

time of inspection.   

It is relevant to point that the complaint was not made by

the owner of the business namely the son of the respondent

no.2 but by the respondent no.2 alone.  

The above complaint was referred by the Magistrate to

the police.  

After a thorough enquiry the police filed a final report on

18.9.1995 that the complaint itself is a false complaint.

However,  the  police  report  was  objected  to  by  the

complainant as wrong and incorrect and that it is without any

proper investigation.

It  appears  that  without  giving  any reasons  whatsoever

and  without  recording  any  defect  in  the  final  report  of  the

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police and without any sufficient additional materials, the said

objection was taken into cognizance and the Magistrate has

issued  notice  and  process  to  the  appellant  and  his

subordinate in CC No.356/1996 and the officials were asked

to appear before the Court for trial of offences u/s 448, 380,

384 and 506 IPC.

The appellant had appeared from time to time before the

learned  Magistrate  and  it  was  pointed  out  that  the  said

complaint itself is false and in any case process ought not to

have been issued since there was specific bar contained under

Section 37 of the Andhra Pradesh General Sales Tax Act, 1957

(in short ‘the Act’) read with Section 197 of the Cr.P.C.

The  appellant  herein  along  with  the  other  officials

preferred  a  petition  before  the  learned  Magistrate  under

Section 37 of the Act  read with Section 197 Cr.P.C.  with a

prayer to dismiss the complaint.

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A petition under Section 482 Cr.P.C. was filed before the

High Court praying for quashing of the proceedings pending in

CC. No.356 of 1996.  This was numbered as Crl. O.P. No.4006

of  1997.   This  was  admitted  on  22.10.1997  and  the  High

Court granted an order of interim stay.

During the course of the hearing it was pointed out to

the High Court that Crl.M.P. No.54/1997 has been filed by the

appellant  and  others  before  the  learned  Magistrate  under

Section 37 of the Act read with Section 197 of Cr.P.C. seeking

dismissal of the complaint.  The High Court disposed of the

Crl.O.P.  No.4006  of  1997  directing  the  learned  Additional

Judicial  Ist  Class  Magistrate,  Karimnagar  to  dispose  of  the

Crl.M.P.  No.54  of  1997  within  a  period  of  3  months.

Subsequently the mistake of the fact that the application itself

has  been  dismissed  for  default  on  21.4.1997  came  to  the

knowledge of the appellant.  The mistake has occurred since

there was communication gap between the appellant and his

counsel at trial court since the appellant has been transferred

to  various  places  subsequent  to  the  filing  of  the  criminal

complaint.

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Therefore,  the  appellant  herein  filed  a  fresh  Crl.O.P.

under Section 482 Cr.P.C. before the High Court pointing the

aforesaid  facts  and  seeking  the  quashing  of  the  complaint.

This was numbered as Crl. Petition No.5218/2001.

The High Court  while  taking up the petition stayed all

further proceedings in the CC No.356 of 1996.

By  the  impugned  order  the  High  Court  dismissed  the

Crl.O.P.No.  5218 of  2001 filed by the appellant herein.  The

High Court even after noting down all the provisions relevant

under  the  Act  and  after  noting  down  the  protection  under

Section 197 Cr.P.C. came to hold that “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  appellant  before  searching  the  business

premises  and  the  residence  of  the  complaint,  it  is  for  the

appellant/accused  to  lead  evidence  and  establish  that  acts

done by him was in due discharge of the official duties and

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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 appellant 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.”

The petition was resisted by the respondent before the

High Court on the ground that Section 37 cannot come to the

aid of the appellant as the alleged acts had nothing to do with

discharge of official duty.

With reference to sub-sections (3) and (4) of Section 28 it

was observed by the High Court that the acts complained of

are  not  encompassed  by  the  said  provision  to  give  any

protection to the appellant. Accordingly, as noted above, the

petition was dismissed.  

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4. In  support  of  the  appeal,  learned  counsel  for  the

appellant submitted that the scope and ambit of Sections 27,

28 and 37 of the Act as well as Section 197 Cr.P.C. have not

been kept in view.  It was submitted that the proceedings were

nothing but abuse of  the process of law and, therefore,  the

High  Court  should  have  interfered  in  the  matter.  Learned

counsel  for  respondent  No.2  submitted  that  he  has  no

instructions in the matter and does not want to have any say.

5. In order to appreciate the submissions of the appellant it

is necessary to take note of Sections 27, 28 and 37 of the Act.

They read as follows:

“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  particles  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

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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 authorized by the State Government in this behalf may for the purpose 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 officers, shops, godowns, vessels or vehicles shall be open to inspection by such officer any time during the business hours  prescribed  under  the  relevant  law of 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  dealers as he may consider necessary and shall given 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  injury  or proceedings under this Act:

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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  purpose  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  such  hours  are  prescribed,  at  all reasonable times, any officer, 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  bring,  keeping  any  goods, accounts, registers or other documents of his business.  

Provided  that  no  residential accommodation  not  bring  a  shop-cum- residence shall be entered into and searched by  any  officer  below  the  rank  of  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.

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(5) The power conferred by sub-section (4) shall  include  the  power  to  break  open  and 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, 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 done 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.

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6. Section 37 like  Section 197 Cr.P.C. aims at preventing

vexatious  prosecution  and  proceedings  against  public

servants.

7. Section  37  puts  embargo  on  institution  of  suits,

prosecution or  other  proceedings  against  any officer  or  any

servant of the State Government for any act done or purported

to  be  done  under  the  Act  without  previous  sanction of  the

State Government.  There is a further embargo i.e.  no such

suit,  prosecution or  proceeding  shall  be  instituted after  the

expiry of six months from the date of the act complained of.

Sub-section  (2)  affords  protection  to  the  officer  referred  to

above in respect of an act if the same was done in good faith

in the course of execution of duties imposed or the discharge

of functions entrusted by or under the Act.

8. “Good  faith”  according  to  the  definition  in  General

Clauses  Act  means a  thing,  which is  in  fact  done  honestly

whether  it  is  done  negligently  or  not  (See  H.H.

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Maharajadhiraja Madhav Rao Jivaji  Rao Scinida Bahadur of

Gwalior etc. v. Union of India and Anr. 1971 (1) SCC 85).

9. Anything done with due care and attention which is not

malafide is presumed to have been done in “good faith” (See

Madhavrao  Narayanrao Patwardhan v.  Ram Krishan Govind

Bhanu and Ors. (1959 SCR 564)

10. Section  197  Cr.P.C.  provides  for  protection  to  public

servants  in discharge  of  official  duties.   There  is  a  need  to

balance  between  protection  to  officers  and  protection  to

citizens.      

11. In  Rakesh  Kumar  Mishra v.  State  of  Bihar  and  Ors.

(2006 (1) SCC 557) it was observed as follows:

“The protection given under Section 197 is to protect responsible public servants against the institution  of  possibly  vexatious  criminal proceedings for offences alleged to have been committed  by  them while  they  are  acting  or purporting  to  act  as  public  servants.  The policy of the legislature is to afford adequate protection  to  public  servants  to  ensure  that

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they are not prosecuted for anything done by them in the  discharge  of  their  official  duties without  reasonable  cause,  and if  sanction is granted, to confer on the Government, if they choose to exercise it,  complete  control  of  the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official  duty and is not merely a cloak for doing the objectionable act.  If  in doing his official duty, he acted in excess of his duty, but there is a reasonable connection  between  the  act  and  the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant  from the  protection.  The  question  is not  as  to  the  nature  of  the  offence  such  as whether  the  alleged  offence  contained  an element  necessarily  dependent  upon  the offender being a public servant, but whether it was committed by a public  servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked,  it  must  be  shown  that  the  official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties.   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.  The act must fall within the scope  and range  of  the  official  duties  of  the public servant concerned.  It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty.  There cannot  be  any  universal  rule  to  determine whether  there  is  a  reasonable  connection

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between the act done and the official duty, nor is it possible to lay down any such rule.  One safe and sure test in this regard would be to consider if the omission or neglect on the part of  the  public  servant  to  commit  the  act complained  of  could  have  made  him answerable  for  a  charge  of  dereliction  of  his official duty, if the answer to his question is in the affirmative,  it may be said that such act was  committed  by  the  public  servant  while acting in the discharge of his official duty and there  was  every  connection  with  the  act complained  of  and  the  official  duty  of  the public servant. This aspect makes it clear that the  concept  of  Section  197  does  not  get immediately  attracted  on  institution  of  the complaint case.”  

12. In  State  of  Haryana  and  Ors. v  Bhajan  Lal  and  Ors.

(1992 Supp. (1) SCC 335), it was observed as follow:

“102. In the backdrop of the interpretation of the  various  relevant  provisions  of  the  Code under Chapter XIV and of the principles of law enunciated  by  this  Court  in  a  series  of decisions  relating  to  the  exercise  of  the extraordinary power under Article 226 or the inherent  powers  under  Section  482  of  the Code which we have extracted and reproduced above, we give the following categories of cases by  way  of  illustration  wherein  such  power could be exercised either to prevent abuse of the process of any court or otherwise to secure the  ends  of  justice,  though  it  may  not  be possible  to  lay  down  any  precise,  clearly

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defined  and  sufficiently  channelised  and inflexible  guidelines  or rigid  formulae  and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where  the  allegations  made  in  the  first information  report  or  the  complaint,  even  if they are taken at their face value and accepted in their entirety do not prima facie constitute any  offence  or  make  out  a  case  against  the accused.

(2) Where  the  allegations  in  the  first information report and other materials, if any, accompanying  the  FIR  do  not  disclose  a cognizable  offence,  justifying  an investigation by police officers under Section 156(1) of the Code  except  under  an order  of  a  Magistrate within  the  purview  of  Section  155(2)  of  the Code.

(3) Where  the  uncontroverted  allegations made in the FIR or complaint and the evidence collected  in  support  of  the  same  do  not disclose  the  commission  of  any  offence  and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is  permitted  by  a  police  officer  without  an order of  a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint  are  so  absurd  and  inherently improbable on the basis of which no prudent person can ever reach a just conclusion that

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there  is  sufficient  ground  for  proceeding against the accused. (6) Where  there  is  an  express  legal  bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned  Act,  providing  efficacious  redress for the grievance of the aggrieved party. (7) Where  a  criminal  proceeding  is manifestly  attended  with  mala  fide  and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”  

13. As  the  factual  scenario  goes  to  show  the  proceedings

were nothing but abuse of the process of law.

14. In view of what is stated in Section 37 of the Act and the

ratio in  Bhajan Lal’s case (supra) the appeal  deserves to be

allowed which we direct.  The proceedings in CC No.356/96

pending  before  learned  Additional  Judicial  Magistrate,  First

Class, Karimnagar stand quashed.

The appeal is allowed.     

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……………………………………J. (Dr. ARIJIT PASAYAT)

……………………………….……J. (Dr. MUKUNDAKAM SHARMA)

New Delhi: August 25, 2008

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