Decided on April 07,1958

K. Stone Appellant
Kresmanik Respondents


H. Deka, J. - (1.)THIS is a reference from the learned Additional District Magistrate, United Khasi -Jain -tia Hills with a recommendation that a criminal proceeding pending against accused K. Stone and others may be quashed on two grounds (1) that the complainant has not been examined on receipt of a Naraji petition and (2) that' sanction to prosecute a public servant like K. Stone is necessary under Section 197, Criminal Procedure Code, and in the absence of such a sanction the trial should1 not be allowed to proceed. We have heard the learned Senior Govt. Advocate in support of the reference and Mr. Das for the complainant, who opposes the acceptance of the reference.
It appears that on 18 -2 -1956 the complainant Kresmanik made an application in the court of the Additional District Magistrate charging U Phildrolip and nine others with various offences -coming within Sections 341, 380, 392, 503 and 427, IPC The main allegation was that on 21 -1 -1956 at about 2 -30 P. M. the Land Customs people who were made accused in the case, came to the house of the complainant and in his absence removed from his godown ten bags of Supari (betel -nuts) valued at about Rs. 2,000/ - by having taken the keys from his carpenter who was in attendance and that they further destroyed some other articles like mustard seeds and kerosene oil etc. valued at Rs. 130/ - or so.

The Additional District Magistrate transferred the complaint to Sri R. K. Bora, Magistrate for disposal who in turn referred the case to the officer -in -charge of the Shillong Police Station for enquiry and report. The police submitted a report after investigation to the effect that Inspector, K. Stone along with other officers and men of the Land Customs and Central Excise Department searched the godown of the complainant on the strength of a search warrant and seized 2V2 bags of betal -nuts which had been kept in the Land Customs godown. The police1 however, was of the opinion that proper formalities of the search were not followed.

The learned Magistrate dismissed the complaint after receipt of the police report but on a fresh application made by the complainant he directed the complainant to prove his case by an order dated 30 -5 -1956. After taking such evidence as was produced at this stage by the complainant the learned Magistrate directed issue of summons on 14 -8 -56 against accused K. Stone and others who are Government servants employed by the Central Government in the Central Excise and Land Customs Department.

The accused K. Stone appeared before the Court and took an objection to the validity of the trial against him in the absence of a sanction of the Central Government as provided under Section 197, Cr. P. C., his case being that he was an employee of the Central Government and removable by the same. There was no dispute that he was being accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.

In support of his statement he produced a copy of a Government notification by which the Central Board of Revenue appointed him as one of the Customs Officers and further averred that the power of removal from the office was not delegated to the Board of Revenue but the Central Government still retained that power and a sanction for prosecution was necessary under these circumstances from the Central Government. This objection was rejected by the learned Magistrate by his order dated 24 -9 -1956 but the learned Additional District Magistrate being moved against this order for a reference to this Court the learned Additional District Magistrate Recommended for quashing the order of the learned Magistrate dated 24 -9 -1956 and for directing that the trial could not proceed against this accused in the absence of a sanction as provided under Section 197, Cr.P.C.

(2.)WE may not give much importance to the first branch of the recommendation of the learned Additional District Magistrate since there was some evidence adduced by the complainant who himself got examined, before summons was issued, but we find substance in the second contention namely as to the necessity of a sanction from the Central Government as provided under Section 197, Cr.P.C. The contention by Mr. Das On behalf of the complainant is that on the admission of the accused K. Stone himself, he was appointed by the Central Board of Revenue and as such, he could be removed from office by the Board itself and not by the Central Government and in support of this contention he relies on Section 16 of the General Clauses Act (Central Act No. X of 1897) which runs as follows:
16. Where, by any Central Act or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power.

Mr. Medhi on the other hand in support of the reference relies on the self -same section as well as on the notification under which the Central Board of Revenue was authorised to make the appointment of the Land Customs Officers, to which category accused K. Stone belongs. The notification whereby the Board of Revenue was authorised to make this appointment prefaces by saying that:

In exercise of the powers conferred by Subsection (1) of Section 3 of the Land Customs Act, 1924 (XIX of 1924) read with the notification of the Government of India in the late Finance Department...the Central Board of Revenue appoints (sic) all Deputy Collectors, Assistant

Collectors...including all the Officers of the Central Excise employed for the time being on Central Excise Preventive Intelligence work and attached to the Headquarters of the Collectorates of Central Excise, Delhi, Calcutta, Patna, Shillong, Madras, Bombay, Baroda and Jamnagar, to be land Customs Officers within the jurisdiction of the respective Collectors of Land Customs under whom they are working.

Section 3(1) of the Land Customs Act runs as follows:

The Central Government may, by notification in the Official Gazette, appoint, for any area adjoining a foreign frontier and specified in the notification, a person to be the Collector of Land Customs and such other persons as it thinks fit to be land Customs Officers. This would clearly show that the duty of appointment of a Land Customs Officer was with the Central Government and they could delegate the authority by notification which they did in this case to the Central Board of Revenue.

The only point to be decided is whether the power of removal or dismissal remained with the Central Government or it was transferred along with the power of appointment. Heading Section 16 of the General Clauses Act as well as the notification, we are of the opinion that the authority for removal was not delegated and it remained with the Central Government because the section itself says that the authority having the power to make appointment shall also have power to suspend or dismiss any person appointed "whether by itself or by any other authority" in exercise of the power. This would only indicate that the authority enjoying the powers of appointment by virtue of a Central Act or Regulation had the power of removal of the officer even though appointed by some other authority on delegation of the power of appointment by itself, as was done in this case. The Central Government enjoyed the power of appointment under the Land Customs Act, Section 3.

3. Another aspect of the question is that the power of appointment of the Land Customs Officer was not conferred on the Board of Revenue by any Central Act or Regulation but they were so authorised under a notification under Section 13 of the Land Customs Act and therefore the Board enjoyed only the power of appointment and not of removal and on terms the provision of Section 16 of the General Clauses Act will not he attracted. Therefore the objection of the accused Land Customs Officer must succeed to the extent that he must be construed to be an officer removable only by the Central Government and the sanction for his prosecution must be obtained from the Central Government itself.

(3.)FROM the letter of reference it appears that all the accused persons in this case are employees of the Central Excise or Land Customs Department, but it is only categorically stated that K, Stone is a Land Customs Officer who is an officer of the Central Government under the Land Customs Act and therefore no trial can proceed at least against K. Stone without any sanction under Section 197, Cr.P.C. Therefore we accept the reference and sent back the case to the lower court for proceeding according to law against the other accused persons. Send down the records immediately to the court concerned.
G. Mehrotra, J.

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