1. This petition is filed by the petitioners-A2 and A3 under Section 482 Cr.P.C. to quash the proceedings in CC No. 57 of 2016 on the file of XII Additional Chief Metropolitan Magistrate, Hyderabad.

2. The case of the petitioners was that the 1st petitioner was an Intelligence Officer and the 2nd petitioner was a Senior Intelligence Officer of the Directorate of the Revenue Intelligence (DRI), Hyderabad Regional Unit. The DRI was the Intelligence and Enforcement Agency of the Anti Smuggling matters under the Ministry of Finance, Government of India.

3. The 2nd respondent was the founder Director of a family concern, by name, M/s. Flytech Aviation Limited (FAL) and held 69% of shares in FAL. On the basis of specific intelligence about evasion of Customs Duties by FAL, the DRI, Regional Unit, Hyderabad initiated investigation into the import of 180 LED Panels (5 LED Boards) from Hong Kong and Aerophile Helium Baloon from United Kingdom. The imports of FAL were made from Sigma Resources Group Incorporation, New York, USA (Sigma), which was also solely owned by the 2nd respondent. Sigma, in turn, purchased the goods from Strongbase Investment Ltd., and Benson International HK Ltd., both based in Hong Kong. Both the purchaser and vendor companies were owned by the 2nd respondent. The essence of the illegal transaction was that FAL paid small amounts to Sigma for the imports, but the Sigma and other entities paid huge amounts to the Benson International and Strongbase Investment Ltd., for the same imports. Lesser amounts were shown in invoices to FAL from Sigma to evade customs duty to Indian Government, among other illegal motives of money laundering. The Additional Director, DRI, Hyderabad issued orders for search on 28.12.2007. The petitioners, along with a team of other members, conducted search at the office premises of FAL and at the residence of the 2nd respondent. The 1st petitioner was one of the four-member search team in respect of the search at the office premises of the FAL. The 2nd petitioner was one of the four-member search team in respect of the search at the residence of the 2nd respondent. During the search, a detailed panchanama of the seized items was recorded. The search at both the places resulted in recovery of documents revealing that the 2nd respondent held 69% shares in FAL and he was also the sole owner of Sigma and he purchased the LED Boards from M/s. Benson International (HK) Ltd., and Strongbase Investment Ltd., Hong Kong and supplied them by grossly under invoicing the same to his own company FAL in contravention of the provisions of Section 14 of the Customs Act, 1962 and the Customs Valuation Rules, 1988.

4. To facilitate the undervaluation, the 2nd respondent issued invoices of Sigma to FAL indicating a value of US$ 81,000/- for all the five Boards, though he actually remitted more than above invoice value to the actual suppliers. The email correspondence between the 2nd respondent and the alleged suppliers recovered during the searches would show that the 2nd respondent procured the same in the name of Sigma at a much higher price and caused loss to the Government exchequer. The above documentary evidence collected made it clear that the 2nd respondent remitted US$ 76,500/- from his ICICI Bank Singapore account, US$ 98,000/- from North Fork Bank, New York and paid US$ 1,41,000/- from the account of M/s. Ariel Technologies, New York to the supplier of LED Boards. Evidence also indicated that in addition to the above, the 2nd respondent remitted an amount of US$ 1,27,500/- through his friend Mr. Badruddin Syed Hyder in Dubai. As per the email correspondence between the 2nd respondent and the supplier in Hong Kong, the 2nd respondent had to pay balance of US$ 2,08,000/- totalling to US$ 6,52,000/- against a value of US$ 81,000/- declared to the Indian Customs for assessment and thereby evaded customs duty. The other documents recovered would show that the 2nd respondent imported spares removed from the damaged aircrafts at cheap prices from USA and supplied them to his own company at highly inflated prices and thereby siphoned out of India huge amount of foreign exchange and caused loss to Government of India. Based on the search and seizure material, huge evasion of customs duties was detected. Proceedings were initiated under the Customs Act, 1962 against the 2nd respondent and the same were pending before the Customs Authorities. Proceedings were also initiated under the Foreign Exchange Management Act, 2000 and Prevention of Money Laundering Act, 2002 by the concerned authorities. The Income Tax Department also initiated proceedings for evasion of tax against the 2nd respondent.

5. The 2nd respondent was arrested on 17.01.2008 and was produced before the Special Judge for Economic Offences, Hyderabad by the petitioners. It was further contended that the 2nd petitioner gave information to the press/media persons that FAL was involved in import of spurious aircraft spares and the same was published in all the local newspapers like Vartha, Surya, Andhra Prabha, Eenadu, New Indian Express, wherein the news was prominently published to the effect that according to the DRI officials, the 2nd respondent was importing spurious and damaged aircraft spares to FAL by sourcing from junk yard in USA and over invoicing FAL. The local media also covered the news on TV channels.

6. While the matter stood thus, the 2nd respondent lodged a private complaint before the XII Additional Chief Metropolitan Magistrate, Hyderabad on 07.01.2009 alleging that his brother i.e. A1 was indulging in illegal and immoral activities, bore grudge against him and in collusion with A2 and A3 i.e. the petitioners herein with a criminal conspiracy, forged the invoices of supplier of LED Panels - Benson International, Hong Kong and boosted the sale figures in the invoice as against the actual value paid by A1 and obtained search warrant and deliberately inserted the incriminating documents and removed the genuine documents to implicate the 2nd respondent in false charges. The petitioners - A2 and A3 also intentionally ignored the fact that it was the A1, who imported LEDs as Director of FAL. The petitioners did not deliberately enquired with the supplier M/s. Benson International HK regarding pricing and genuineness of the two invoices either by fax, email or telephone, despite DRI was having an Officer working in Hong Kong for Customs Department of India known as Customs Overseas Intelligence Network (COIN) specifically to cross-verify the information.

7. The said complaint was referred to the police for investigation under Section 156 (3) Cr.P.C. Basing on it, the Sub-Inspector of Police of Central Zone, CCS, DD, Hyderabad registered a case in Crime No. 12 of 2009 under Sections 120-B, 166, 212, 220, 468, 469 & 471 IPC against A1 to A3. During the course of investigation, the Investigating Officer addressed letters to the Registrar of Companies and collected details of Management of FAL and also addressed letters to Directorate of Revenue Intelligence and collected records i.e. copy of DRI authorization to search at the premises of FAL dated 28.12.2007, copy of the letters addressed by A2 to ADG, Chennai, copy of letter of ADG, Chennai authorizing the arrest of the complainant. After collecting the documents including the alleged forged invoices seized at the premises of FAL by the petitioners and after recording statements of the witnesses, a letter of request/Letter of Rogatory (LR) was forwarded through the court to the court in Hong Kong by framing a questionnaire. Consequent to the LR, the competent court in Hong Kong issued summons to the responsible official of Benson International (HK) Limited and prepared transcript evidence together with exhibits (copies of two invoices) taken under affirmation before the Magistrate. On examination of the report and depositions of the witnesses, the Investigating Officer came to know that the said invoices were not issued by the Benson International Hong Kong Limited company and that the said invoices were forged, fake and were not genuine. Basing on the said evidence, the Investigating Officer considered that the petitioners being officials of DRI in criminal conspiracy with A1, brother of the 2nd respondent, tarnished the image of the 2nd respondent, misused their powers as public servants and created various documents alleged to have been retrieved from the laptop submitted by the 2nd respondent in their office on 08.01.2008, filed charge sheet against A1 to A3.

8. The charge sheet would further reveal that the petitioners in furtherance of their criminal conspiracy with A1, created false data as though it emanated from the laptop of the 2nd respondent, the petitioners along with A1 met at Benson Taj and Green Park Hotels, respectively, to conspire with each other before the date of search on 28.12.2007 and A1 and A2 were involved in exchange of monetary transactions between them. A1 had given a cheque bearing No. 1544 dated 11.11.2008 of ICICI Bank to A2 and the same was debited into the account of A2. The petitioners - A2 and A3 had destroyed the evidence in the form of papers seized by them and the petitioners in furtherance of their conspiracy with A1, managed to obtain permission to arrest the 2nd respondent by misrepresenting the facts of the case and got arrested the 2nd respondent illegally for no fault of him. The charge sheet would further reveal that the search was conducted by the petitioners during the absence of the 2nd respondent and the petitioners had taken into custody the Hard Disk of CCTV. It was also mentioned in the charge sheet that though the petitioners were public servants, protection under Section 197 Cr.P.C. was not applicable as they had misused the powers and colluded and conspired criminally to wrongfully confine the 2nd respondent and to cause injury to him, as per the judgments of the Hon'ble Apex Court in Shambhoo Nath Misra v. State of U.P. and others AIR 1997 SC 2102 [LQ/SC/1997/481] , State of H.P. v. M.P. Gupta 2004 (2) SCC 349 [LQ/SC/2003/1241] and State of Kerala v. V. Padmanabhan Nair AIR 1999 SC 2405 [LQ/SC/1999/603] . It was also mentioned that the petitioners had removed the webcams valued about Rs. 5,000/- from the premises of FAL during their search operations and did not bring it on record and failed to return the same to the 2nd respondent or FAL and committed offence punishable under Section 380 IPC. The said charge sheet filed by the Inspector of Police, SIT, CCS, Hyderabad was taken on file under Sections 468, 469, 471, 341, 343 read with 34, 109, 120-B IPC and 7 (1) of the Criminal Law Amendment Act by the Additional Chief Metropolitan Magistrate, Hyderabad and summons were issued to A1 to A3.

9. Challenging the issuance of summons to them, the petitioners - A2 and A3 filed this petition contending that sanction for prosecution was mandatory as they were employees of Central Government and the absence of the same would vitiate the whole proceedings. They further contended that admittedly, there were serious disputes between A1 and the 2nd respondent, who were brothers and civil and criminal cases were pending between them. By taking advantage of the same, the 2nd respondent filed a frivolous complaint against the petitioners. There were absolutely no forged invoices in the documents seized on 28.12.2007. Only as an afterthought, after more than a year on 21.01.2009, the 2nd respondent filed the private complaint inventing the allegations of forged invoices only to evade the proceedings under the Customs Act, Income Tax Act and FEMA. It was a classic case of certain State Police Officers creating a flimsy case against Government Officers of DRI to help the 2nd respondent to evade the taxes, penalties and prosecution proceedings for violation of the Customs Act, Income Tax Act and Prevention of Money Laundering Act. The Letter of Rogatory affair was botched up and the evidence was rallied at the behest of the 2nd respondent. The allegations of GEQD report not bearing the serial number of one of the computer laptops seized was frivolous. The 1st petitioner immediately on observing the mischievous deposit in his account informed his superior officers and the Bank. The tax evasion and money laundering involved in import of LED Boards, Helium Balloon and Aircraft spares was evidenced by the banking transactions made by the 2nd respondent. The two disputed invoices and disputed emails were not the sole evidence. The damaged and discarded spares imported by the 2nd respondent and sold in the domestic market, was borne out by record. The allegation of meetings of the petitioners in hotels etc., were all created for the purpose of this case. The statements of panch witnesses mentioned in the charge sheet were manufactured by the 2nd respondent and the police. Under the Customs Act, it was not the directorship that would make a person amenable to action for violation of the Act, but the actual persons involved in the evasions and the 2nd respondent was solely responsible for the huge evasion. The issue of deposit of Rs. 15,000/- on 08.02.2009 in the joint bank account of the 1st petitioner was a mischief created by the 2nd respondent to harass the 1st petitioner and moreover done after the complaint was made by the 2nd respondent on 12.01.2009. All the acts done by the petitioners during the search and seizure were strictly in accordance with law. It was a classic case of unscrupulous importer and money launderer manipulating local police to intimidate the DRI and terrorize it from doing its duty and prayed to quash the proceedings in CC No. 57 of 2016.

10. Heard Sri Adi Narayan Rao, learned Senior Counsel for the petitioners and Sri B. Kumar, learned Senior Counsel for the 2nd respondent and the learned Public Prosecutor for the 1st respondent.

11. Both the learned Senior Counsel representing the petitioners and the 2nd respondent filed written arguments besides submitting their oral arguments and relied upon several judgments on each side.

12. Learned Senior Counsel for the petitioners submitted that continuing the prosecution against the petitioners was nothing but running a parallel case to the proceedings under the Central enactments, which was not permissible and would constitute abuse of process of law and would adversely affect not only the petitioners who were government servants but would strangulate the very functioning of all the officers enforcing the law. The petitioners, being Government Servants (Officers of Customs) were protected by Section 155 of the Customs Act, 1962. The prosecution on allegations related to search and seizure were official acts, as such sanction of the Government was necessary under Section 197 of Cr.P.C. for prosecuting the petitioners. The allegations against the petitioners about tampering with the evidence during search operation was inextricably linked to their official duties done under Chapter VIII of the Customs Act, 1962 which, provided for search, seizure and arrest. If there was any truth in the allegations that the evidence collected during search and seizure operation of DRI was tampered, the same should have been thrashed out only through the adjudicatory procedure provided under the Customs Act before the Tribunal. The genuineness or otherwise of the search and seizure could only be agitated by the 2nd respondent in those proceedings. Any other parallel proceedings on the allegations of fake documents was nothing but abuse of process of law and no government officer could perform any search or seizure in future if the frivolous complaint of the 2nd respondent was given any credence.

13. The learned Senior Counsel for the 2nd respondent, on the other hand, contended that no sanction under Section 197 Cr.P.C. was required as the petitioners were not shown to be removable from service by the State or Central Government or with the sanction by the Central Government. Section 4 of the Customs Act would provide that the Board may appoint such persons as it thinks fit to be officers of customs. Section 4(2) says that Board may also authorize such officers of the rank not below the Assistant Commissioner of Customs to appoint officers below that rank. The Senior Intelligence Officer and the Intelligence Officer were below the rank of Assistant Commissioner of Customs. Therefore, their appointment was not by the Government. As the petitioners were not removable by the State or Central Government, Section 197 Cr.P.C. had no application to them. He further contended that Section 155 of the Customs Act would apply only if the Customs Officers were prosecuted for the offences under the Customs Act. It had no application when they were being prosecuted for the offences under IPC. Section 155(1) of the Customs Act would apply only when the acts were done in good faith. When a person was accused of commission of serious offence under IPC, it could never be said that it was done in good faith. Hence, Section 155(1) of the Customs Act had no application. He further contended that the police, after a detailed investigation and also after sending the letters of Request and letters of Rogatory by which the officials of Benson International were examined before the Criminal Courts in Hong Kong and their statements were recorded and forwarded to the Court, came to know that the said two invoices recovered from the office premises of FAL, Hyderabad were not genuine and were not issued by them. The petitioners did not verify the genuineness of the documents even though prosecution had shown that there was an organization called Customs Oversees Intelligence Network in Hong Kong for verifying such documents. The petitioners deliberately had not done as they knew that they were forged documents. It might not be justified in appreciating the evidence gathered by the police in a petition under Section 482 Cr.P.C. and prayed to dismiss the petition.

14. In the light of the factual aspects and the rival contentions raised by both the learned Senior Counsel, the points that arise for determination in this petition are:

(1) Whether there is necessity to obtain sanction to prosecute the petitioners under Section 197 Cr.P.C.

(2) Whether the petitioners were entitled to protection under Section 155 of the Customs Act

(3) Whether the proceedings in CC No. 57 of 2016 are liable to be quashed under Section 482 Cr.P.C.

15. POINT No. 1: To address this point, it is necessary to extract Section 197 Cr.P.C. It reads as under:

"197. Prosecution of Judges and public servants.

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:

Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted."

16. The contention raised by the learned Senior Counsel for the 2nd respondent primarily was that the petitioners were not removable from the office by the State or Central Government. They were appointed by a Board under Section 4(2) of the Customs Act, 1962. Section 4 (2) of the Customs Act would say that the Board might also authorize such officers of the rank not below the Assistant Commissioner of Customs to appoint officers below that rank. The petitioners were of the rank of Senior Intelligence Officer and the Intelligence Officer below the rank of the Assistant Commissioner of Customs. Therefore, their appointment was not by the Government, but by the Board, as such Section 197 Cr.P.C. is not applicable to them. To appreciate this contention, it would be appropriate to extract Section 4 of the Customs Act, 1962 also which refers to appointment of officers of customs. It reads as under:

"4. Appointment of officers of customs.-

(1) The Board may appoint such persons as it thinks fit to be officers of customs.

(2) Without prejudice to the provisions of sub-section (1), Board may authorise a Chief Commissioner of Customs or a Joint or Assistant or Deputy Commissioner of Customs to appoint officers of customs below the rank of Assistant Commissioner of Customs."

17. Learned Senior Counsel for the petitioners, on the other hand, filed Notification No. 31/97-Cus.(N.T.), dated 7th July 1997, wherein it was notified that:

"In exercise of powers conferred by sub-section (1) of Section 4 of the Customs Act, 1962 (52 of 1962) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 38/63-Customs, dated 1st February, 1963, the Central Government hereby appoints the following persons to be the Officers of Customs, namely:-

1. Appraisers, Examiners, Superintendent Customs (Preventive), Preventive Officers Women Searchers, Ministerial Officers and Class IV Officers in the Customs Department in any place in India.

2. Superintendents, Inspectors, Women Searchers, Ministerial staff and Class IV staff of Central Excise Department, who are for the time being posted to a Customs port, Customs airport, Land-Customs station, Coastal port, Customs preventive post, Customs Intelligence post or a Customs warehouse.

3. Superintendents and Inspectors of Central Excise Department in any place in India.

4. All Officers of the Directorate of Revenue Intelligence.

5. All Officers of the Narcotics Control Bureau.

6. All Assistant Directors of the Central Economic Intelligence Bureau."

18. Thus, the Central Government by notification entrusted to the officers mentioned in the notification specific functions like search, seizure and arrest as a functional necessity to prevent the problem of smuggling to combat the inability of the customs department to be present across the length and breadth of the country. Thus, the Central Government considered even Class-IV employees of the Customs Department working in any place in India and all the officers of the DRI as appointed by the Central Government by the above notification. The petitioners being the Senior Intelligence Officer and the Intelligence Officer of Customs appointed as Customs Officers under Section 4(1) of the Customs Act are undoubtedly 'public servants' acting in discharge of their official duties. Hence, sanction of Government is required before prosecuting them for any offences committed by them while discharge of their official duties.

19. Now the question that arises for consideration is whether the offences alleged against the petitioners can be considered as committed in discharge of their official duties or not

20. Learned counsel for the 2nd respondent relied on the judgment of the Hon'ble Apex Court in Shambhoo Nath Misra v. State of U.P. and others AIR 1997 SC 2102 [LQ/SC/1997/481] (supra), wherein it was held that:

"4. Section 197 (1) postulates that "'when any person who is a public Servant not removable from his office, save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him, while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction of the appropriate Government/authority". The essential requirement postulated for sanction to prosecute the public servant is that the Offence alleged against the public servant must have been done while acting or purporting to act in the discharge of his official duties. In such a situation, it postulates that the public servant's act is in furtherance of the performance of his official duties. If the act/omission is integral to performance of public duty, the public servant is entitled to the protection under Section 197 (1) of Cr, P, C, without previous sanction, the complaint/charge against him for alleged offence cannot be proceeded with in the trial, The sanction of the appropriate Government or competent authority would be necessary to protect a public servant from needless harassment or prosecution. The protection of sanction is an assurance to an honest- and sincere officer to perform his public duty honestly and to the best of his ability. The threat of persecution demoralizes the honest officer. The requirement of sanction by competent authority of appropriate Government is an assurance and protection to the honest officer who does his official duty to further public interest However, performance of Official duty Under colour of public authority cannot be camouflaged to commit crime. Public duty may provide him an opportunity to commit crime. The Court to proceed further in the trial or the enquiry, as the case may be, applies its mind and records finding that the crime and the official duty are not integrally connected.

5. The question is when the public servant is alleged to have com-mitted the offence of fabrication of record or rnisappropriation of public fund etc., can he be said to have acted in discharge of his official duties It is not the official duty of the public servant to fabricate the fake record and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc- It does not mean that it is integrally connected or inseparably inter linked with the crime committed in the course of same transaction, as was believed by the learned judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial Court on the question of sanction is clearly illegal and cannot be sustained."

20.1. He further relied on the decision of the Hon'ble Apex court in State of Kerala v. V. Padmanabhan Nair AIR 1999 SC 2405 [LQ/SC/1999/603] (supra), wherein it was held that:

"That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120-B of the IPC sanction Under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated the correct legal position in Shreekantiah Ramayya Munnipalli v. State of Bombay, AIR (1955) SC 287 [LQ/SC/1954/182] and also Amrik Singh v. State of Pepsu, AIR (1955) SC 309 [LQ/SC/1955/16] that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad (supra) as follows:

"As far as the offence of criminal conspiracy punishable under Section 120-B, read with Section 409 Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act, are concerned they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure, To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar.

20.2. Learned counsel for the 2nd respondent relied on the judgment of the Hon'ble Apex Court in P.K. Prathan v. State of Sikkim, rep. by CBI 2001 (6) SCC 704, [LQ/SC/2001/1477] wherein it was held that:

"5. The legislative mandate engrafted in sub-section (1) of Section 197 debarring a court from taking cognizance of an offence except with the previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from office save by or with the sanction of the Government touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking cognizance. Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in Section 197 of the Code; any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a court has to find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in excess of the needs and requirements of situation."

20.3. He also relied on the decision of the Hon'ble Apex Court in N.K. Ganguli v. CBI (2016) 2 SCC 143, [LQ/SC/2015/1543] wherein it was held that:

"35. From a perusal of the case law referred to supra, it becomes clear that for the purpose of obtaining previous sanction from the appropriate government under Section 197 of CrPC, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also important for the Court to examine the allegations contained in the final report against the Appellants, to decide whether previous sanction is required to be obtained by the respondent from the appropriate government before taking cognizance of the alleged offence by the learned Special Judge against the accused. In the instant case, since the allegations made against the Appellants in the final report filed by the respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government under Section 197 of CrPC was required to be taken by the respondent, before taking cognizance and passing an order issuing summons to the appellants for their presence.

37. For the aforesaid reasons, we set aside the impugned judgment and order of the High Court dated 27.05.2013 passed in Application Nos. 480 of 2013, 41206, 40718, 41006 and 41187 of 2012 and order dated 7.10.2014 passed in Application No. 277KH of 2014 in Special Case No. 18 of 2012 and quash the proceedings taking cognizance and issuing summons to the appellants in Special Case No. 18 of 2012 by the Special Judge, Anti Corruption (CBI), Ghaziabad, U.P. in absence of previous sanction obtained from the Central Government to prosecute the appellants as required under Section 197 of CrPC. The appeals are allowed."

20.4. He further relied on the decision of the Hon'ble Apex Court in State of Orissa v. Ganesh Chandra Jew (2004) 8 SCC 40, [LQ/SC/2004/426] wherein the Hon'ble Apex Court laid down that the protection under Section 197 Cr.P.C. would be available only when the act done by the public servant is reasonably connected with the discharge of his official duty. It was held that:

"7. 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 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 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.

11. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the Section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty and without any justification therefor then the bar under Section 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by this Court in Matajog Dobey v. H.C. Bhari (AIR 1956 SC 44 [LQ/SC/1955/92] ) thus:

"The offence alleged to have been committed (by the accused) must have something to do, or must be related in some manner with the discharge of official duty...

there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable (claim) but not a pretended or fanciful claim, that he did it in the course of the performance of his duty."

12. If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to official to which applicability of Section 197 of the Code cannot be disputed."

20.5. The leaned counsel for the 2nd respondent further relied on the judgment of the Hon'ble Apex Court in Rajib Ranjan v. R. Vijaykumar (2015) 1 SCC 513 [LQ/SC/2014/1101] wherein it was held that:

"While discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and therefore, previsions of Section 197 of the Code will not be attracted."

20.6. He relied on the judgment of the Hon'ble Apex Court in State of Maharashtra v. Jagatsing Charansing Arora and another AIR 1964 SC 492 [LQ/SC/1963/181] wherein it was held that:

"It is not every offence committed by a public' servant that requires sanction for prosecution under section 197 (1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, 'it could be claimed' to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits which would have to be investigated 'at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution."

21. The learned counsel for the petitioners on the other hand relied upon the judgments of the Hon'ble Apex Court in Punjab Warehousing Corporation v. Bhushan Chander and another (2016) 13 SCC 44 [LQ/SC/2016/776] and Amal Kumar Jha v. State of Chhattisgarh and another, wherein it was held that:

"As regards the invocation of Section 197 Cr.P.C., a survey of the precedents makes it absolutely clear that there has to be a reasonable connection between the alleged omission or commission and the discharge of the official duty or the act committed was under the colour of the office held by the official concerned. If the act(s), omission or commission of which is totally alien to the discharge of the official duty, question of invoking Section 197 Cr.P.C. does not arise. The act concerned must bear a relation to the duty that the accused could lay a reasonable claim that the act has been in exercise of official duty or duty that has been done has the colour of office."

22. The learned counsel for the petitioners relied upon the judgment of the Hon'ble Apex Court in D. Devaraja v. Owais Sabeer Hussain (2020) 7 SCC 695, wherein the Hon'ble Apex Court reiterated the law relating to the requirement of sanction to entertain and/or taking cognizance of an offence and the object of sanction for prosecution was stated as under:

"66. Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate government.

67. Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under Section 197 of the Criminal Procedure Code read with Section 170 of the Karnataka Police Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a police man assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be.

68. If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of government sanction for initiation of criminal action against him.

69. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority.

70. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law.

71. If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate government is obtained under Section 197 of the Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act."

23. Thus, the Hon'ble Apex Court held that sanction was required even when the acts were done in excess of duties and authorities of the public servants also, if they were reasonably connected to the discharge of their official duties.

24. In the present case, the allegations were made against the petitioners about tampering of evidence while they were conducting search at the office premises and at the residence of the 2nd respondent and seizure of certain documents. Thus, the offences were alleged to have been committed by the petitioners while they were performing their official duties of search for evidence and seizure of the documents in discharge of their official duty. Section 197 of the Code of Criminal Procedure if construed too narrowly, it can never be applied, as it is no part of an official's duty to commit an offence and never can be, as observed by the Hon'ble Apex Court in Shreekantiah Ramayya Munipalli and Anr. v. State of Bombay AIR 1955 SC 287 [LQ/SC/1954/182] .

25. No narrow interpretation can be given to Section 197 Cr.P.C., as the acts alleged against the petitioners are reasonably connected in discharge of their official duties. As such, cognizance cannot be taken by the Court without the requisite sanction of the appropriate Government. As such, taking cognizance of the offences by the Court against the petitioners without prior sanction is considered as illegal and void ab initio. The use of the words 'no' and 'shall' under Section 197 Cr.P.C. would make it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete and taking of the cognizance is barred under law. Hence, Point No. 1 is answered in favour of the petitioners holding that the petitioners are public servants and there is necessity of sanction under Section 197 Cr.P.C. to prosecute them for the offences alleged against them from the competent Government by which they were appointed and were not removable from their office.

26. POINT No. 2: Learned counsel for the petitioners contended that the petitioners were entitled for protection under Section 155 of the Customs Act 1962, whereas the learned counsel for the 2nd respondent contended that Section 155 would apply only if the Customs Officers were prosecuted for the offences under the Customs Act but it had no application when they were being prosecuted for the offences under IPC and that too only if the act was done by them in good faith.

27. In view of the rival contentions raised by both the counsel, it is considered appropriate to extract Section 155 of the Customs Act 1962. It reads as follows:

"155. Protection of action taken under the Act.-

(1) 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.

(2) No proceeding other than a suit shall be commenced against the Central Government or any officer of the Government or a local authority for anything purporting to be done in pursuance of this Act without giving the Central Government or such officer a month's previous notice in writing of the intended proceeding and of the cause thereof, or after the expiration of three months from the accrual of such cause."

28. Sub-Section (1) of Section 155 of the Customs Act gives a protection to 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 the Act or the rules or regulations. There is a bar on filing a suit, prosecution or other legal proceedings, if the act is done in good faith.

29. Learned counsel for the respondent No. 2 relied upon the judgment of the High Court of Rajasthan at Jodhpur in Ravindra Kumar v. Union of India 2017 (347) E.L.T. 269 (Raj.) wherein it was held that:

"16. The words "no proceeding" appearing in sub-section (2) of Section 155 of the Customs Act, in my humble opinion, do not include criminal prosecution, as for the protection pertaining to prosecution, there is specific provision under sub-section (1) of Section 155 of the Customs Act."
He also relied on the judgment of the High Court of Delhi in Atul Dikshit v. Central Bureau of Investigation 2017 (348) E.L.T. 224 (Del.), wherein it was held that:

"Limitation as prescribed under Section 155(2) of Customs Act would not be applicable to criminal proceedings/prosecution. Words 'no proceedings' occurring in Section 155(2) do not include 'criminal proceedings."

He further relied on the judgment of the Madras High Court in Assistant Commissioner of Customs (Prosecution, Tuticorin v. Job Jacob 2019 (370) E.L.T. 224, 265 (Mad), wherein it was held that:

"10. Section 155 reads that no suit, prosecution or other legal proceeding shall lie against the Government servants of either Government or 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.

11. Whereas the specific allegation against the respondents is that they have done certain act which is contrary to the Customs Act and the Rules framed there under. It is also specifically alleged against them that the act done by these accused persons are not done with dishonest intention. Thus the scope of differing good faith gets excluded.

14. The contention of the learned counsel for the respondents is that the words "no proceeding" includes criminal proceeding/prosecution. An incised scrutiny of Section 155 of the Customs Act and different words employed by the legislators in Sub Sections (1) and (2) of the Section 155 will clearly show that the submission made by the respondents and accepted by the trial Court, is totally erroneous. It is untenable to say that any person who is employed in the Government or local authority cannot be prosecuted for his misdeed, without putting him on one month notice and can proceed not after lapse of three months. The Court below has failed to note that when protection is given to Government servant for from prosecution under Sub Section (1) of Section 155, the word prosecution is consciously not mentioned in Sub Section (2). Also the words other legal proceedings is Conspicuously absent in http://www.judis.nic.in Sub Section (2). The word employed in Sub Section (2) is only proceedings and not other legal proceedings.

15. The statute says that no proceeding other than a suit can be initiated without previous notice with one month time and not after expiration of three months from the accrual of such cause. Thus on applying the principle of golden Rule of interpretation, the word proceedings should be given only limited and restricting meaning."

30. All the above judgments, relied by the learned counsel for the 2nd respondent, are that of various High Courts of Rajasthan, Delhi and Madras. But the Hon'ble Apex court in Costao Fernandes v. State at the instance of D.S.P., CBI, Bombay (1996) 7 SCC 516, [LQ/SC/1996/450] wherein a Customs Officer had a scuffle with a person alleged of smuggling gold and caused his death and when the CBI sought to prosecute the Customs Officer, came down heavily and held that the protection under Section 155 of the Customs Act was available to the Customs Officer as the killing cannot be divorced from the performance of duty enjoined by Section 106 of the Customs Act, 1962 though the act might be in excess. In the present case also, the petitioners were searching the premises and seizing documents under Section 105 of the Customs Act, 1962 and the said official duty is inseparably linked to the allegation of interpolating two invoices and tampering with records seized under the cover of Panchanama. The allegations relate to the performance of official duties by the petitioners, hence, they were protected against the prosecution under Section 155(1) of the Customs Act, 1962.

31. Hence, I do not find any merit in the contention of the learned counsel for the 2nd respondent that the protection was available only when a person was accused of offence under the Customs Act, but not of the offence under IPC. As in the above case, relied upon by the learned counsel for the petitioners also the Customs Officers were alleged to have committed offence under Section 302 IPC by causing death of a person, wherein the Hon'ble Apex Court came to the protection of the Customs Officers by saying that the protection under Section 155 of the Customs Act was available to them. As such, point No. 2 is also answered in favour of the petitioners.

32. POINT No. 3: Learned counsel for the 2nd respondent contended that there was prima facie material collected by the Investigating Officer against the petitioners herein and the allegations in the charge sheet had to be taken on their face value and as they disclose all the ingredients constituting the alleged offences, the charge sheet could not be quashed under Section 482 Cr.P.C. He relied upon the judgment of the Hon'ble Apex Court in State of Madhya Pradesh v. Yagendra Singh Jadon (2020) 12 SCC 588, [LQ/SC/2020/158 ;] wherein it was held that:

"Power under Section 482 cannot be exercised where prima facie case stands established and allegations are required to be proved in court of law."

33. In D. Devaraja's case (2020) 7 SCC 695 (supra), relied on by the learned counsel for the petitioners, the Hon'ble Apex held that:

"74. It is well settled that an application under Section 482 of the Criminal Procedure Code is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of court. If, on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, where the criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power under Section 482 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of court."

34. As the intention behind Section 197 Cr.P.C. as well Section 155 of the Customs Act is to protect the public servants acting in discharge of their official duties from facing harassive, retaliatory, revengeful and frivolous proceedings, the initiation of prosecution against them without sanction from the competent Government would erode their confidence in discharging their duties efficiently. Conducting parallel proceedings against them for the acts done by them in discharge of their official duties and rendering them liable for prosecution would not allow them to discharge their duties fearlessly. As such, it is considered fit to allow the petition quashing the proceedings against the petitioners in CC No. 57 of 2016.

35. In the result, the Criminal Petition is allowed quashing the proceedings in CC No. 57 of 2016 on the file of XII Additional Chief Metropolitan Magistrate, Hyderabad against the petitioners - A2 and A3.

36. Miscellaneous petitions pending, if any, shall stand closed.