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2004 DIGILAW 510 (PAT)

Syed Jamil Akhtar v. State Of Bihar

2004-05-06

CHANDRA MOHAN PRASAD

body2004
Judgment 1. The petitioners have approached this Court praying for quashing of criminal proceedings against the petitioners by way of setting aside the impugned order dated 11th September, 2003 of the learned Special Magistrate, C.B.). passed in R.C. No. 23(A) of 1989 whereby the learned Magistrate has rejected the petitioners prayer for tapping the criminal proceedings on the ground that before according sanction under Section 137 of the Customs Act, 1962 (nereinafter, in short, referred to as the "Act"), aby notice was not given to the petitioners. 2. The petitioners being public servants, are being prosecuted for various offences on the allegations that they being in collusion and connivance with others, caused the Customs Department a loss to the tune of Rs. 1,21,21,320/-. After lodging of F.I.R., completion of investigation and filing of charge-sheet, cognizance of the offence was taken and the petitioners are facing trial in which the evidence is proceeding. 3. Learned counsel for the petitioners submitted that during the evidence of one witness Ajay Kumar Singh, an official of the Customs Department, who had accorded sanction under Section 137 of the Act, a question was put to him during the cross-examination whether he had issued any notice to the petitioners before according sanction under the said Section 137 of the Act to which the witness replied in the negative. On the witness replying in such negative term, the petitioner filed a petition before the trial court praying for stopping the proceeding on the ground that the petitioners were not noticed before according sanction under Section 137 of the Act Learned trial court rejected the petitioners prayer. Challenging that order of the learned Magistrate, the petitioners have approached this Court for the aforesaid relief. 4. During the argument, learned counsel for the petitioners argued that under Section 155 of the Act, it is provided that no suit or prosecution shall lie against the Central Government servants for anything done or intended to be done in good faith in pursuance of official date. 5. While arguing the case, learned counsel mixed the question arising under the provisions of Sections 137 & 155 the Act which are independent Sections. So far Section 137 is concerned, it does not make a prerequisite for the authority, according sanction for prosecution, to issue notice to the concerned Officer before according sanction. 5. While arguing the case, learned counsel mixed the question arising under the provisions of Sections 137 & 155 the Act which are independent Sections. So far Section 137 is concerned, it does not make a prerequisite for the authority, according sanction for prosecution, to issue notice to the concerned Officer before according sanction. Therefore, the petitioners prayer for stopping the proceeding on the ground that before according sanction, the concerned authority i.e. P.W. 6 did not issue notice to the petitioners is not acceptable. 6. So far petitioners similar prayer with the aid of provisions of Section 155 of the Act is concerned, it is relevant to mention here that the petitioners had earlier approached this Court with a similar prayer relying on the similar provisions under Section 155 of the Act under Cr. Misc. No. 32692 of 2001, wherein by order dated 15th January, 2002, this Court has already decided that this is a question of law which, however, may be raised by the petitioners by way of their defence in the trial itself in the case, and, if it is so done, the learned Magistrate shall allow the petitioners to take the plea and allow them to lead evidence, without being prejudiced by the order aforesaid. Thus so far the matter as raised With the help of Section 155 of the Act is concerned, it has already been decided by this Court that it is to be established by the petitioners in their defence and they are at liberty to lead evidence to substantiate their point during the trial. 7. During hearing, learned counsel for the C.B.I. argued that the petitioners are in the habit of filing petitions under Section 482 of the Code of Criminal Procedure before this Court again and again on similar matters on similar ground with a view to delay the trial of the case, hence, some cost should be awarded against the petitioners. 8. Learned counsel for the petitioners replied that while the petitioners have filed the instant petition as well as others in the past, the trial of the case was never stayed nor it has lingered due to such reasons, hence the question of awarding cost against the petitioners does not arise. 9. In view of the discussions made above, I find no merit in this application. It is, accordingly, dismissed. 9. In view of the discussions made above, I find no merit in this application. It is, accordingly, dismissed. However, in the facts and circumstances of the case, I do not feel any necessity to grant any cost against the petitioners.