S.B.Khangwal, Excise and Taxation Commissioner vs Paryag Chand Punam Chand

S.K. Jain, J.

Pirm M/s Paryag Chand Puran Chand, Ellenabad was an assessee under the Sales Tax Act. Shri S.B. Khangwal was posted as Excise and Taxation Officer, Sirsa during the year 1982. Village Ellenabad where the abovesaid firm carried on its business fell within the jurisdiction of ETO. Sirsa on 25.8.1982 Shri Khangwal (hereinafter referred to as `the accused'') carried out inspection of the business premises of the said firm and seized some account books for verification. Since the accused did not return the said account books within the statutory period of ten days Shri Chaterbhuj partner of the firm, moved an application before the Deputy Excise and Taxation Commissioner, Sirsa (hereinafter referred to as `the DETC'') on 8.10.1982 for transfer of the proceedings on the ground that the firm could not meet the illegal demands of the accused but the said application was dismissed open 22.12.1982. An appeal against the said order was rejected by the Joint Excise and Taxation Commissioner Rohtak vide his order dated 23.12.1982. The accused obtained permission to retain the account books of the firm upto 30.12.1952 from the Taxation Commissioner, Chandigarh. He granted the same on that very day. On 12.1.1983 the accused again sought extension of time for retaining the books. The (sic) Procedure Code, the accused has challenged above said order of the trial Magistrate.

I have heard the learned counsel for the parties and with their help have gone through the record of the case. Shri Naubat Singh, learned counsel for the petitioner has argued : (1) that the finding of the learned trial Magistrate that the successor of the accused would not have issued notice Ex. PA if the matter had actually been disposed of by the accused before his relinquishing the charge of his post, was misconceived because notice Ex. PA was issued for the assessment year 198283 whereas orders Ex. PW5/E and Ex. PW5/D related to the imposition of penalty under Sections 48 and 51 of the Haryana Sales Tax Act; and (ii) that admittedly the accused was a public servant and was not removable from his office save by or with the sanction of the Government and, therefore, the complaint without obtaining sanction under Section 1973 Cr.P.C. was not maintainable.

On the other hand learned counsel for the respondent has argued that at the stage of framing the charge, the trial Magistrate had not to scrutinise the case of the prosecution to the extent as it is to be scrutinised at the final stage. He has further submitted that since the accused had not committed the offence in question in the discharge of his official duties, no sanction under Section 197 was required to be obtained before filing the complaint.

I have given my anxious consideration to the respective submissions of the learned counsel. I do not propose to undertake a detailed discussion of the question because ultimately at the appropriate stage the trial Court will have to decide the significant question as to the offence which is disclosed on the proof of facts of the case. In the limited context of the disposal of the present revision petition it may be observed that there can be no two views that for framing a charge, the totality of facts and circumstances have to be taken into consideration. It is settled law that at the stage of framing the charge, the evidence is not meticulously judged. Only a prima face case is required to be seen. If any authority is required reference may be made to Sukhdev Singh v. Ajaib Singh and others, 1991(3) RCR 39 wherein the following judgments have been relied upon :

(i) State of Bihar v. Ramesh Singh, 1977 CLR (SC) 37, and

(ii) Radhey Sham v. Kunj Bihari and others, 1990(2) R.C.R.(Criminal) 50 : 1989(2) S.P.J. (SC) 598.

The learned trial Magistrate on the basis of the material on record, including pre charge evidence, had come to the conclusion that a prima facie case under Sections 166 and 219 Indian Penal Code had been made out against the accused.

As far as the question of obtaining sanction under Section 197 Cr.P.C. is concerned it is alleged that the accused had ante dated the orders Ex. PW5/E and Ex. PW5/D. It cannot be said that the offence alleged to have been committed by him was at a time when he was acting or purporting to act in the discharge of his official duties. Therefore the learned trial Magistrate in para No. 14 of his judgment had rightly found as under :

"The fact of antedating the impugned orders done by the accused has therefore, no reasonable connection with the discharge of his official duty."

For the aforesaid reasons, the revision petition fails and the same is dismissed and the order of the learned trial Magistrate dated 28.8.1989 is hereby affirmed. The parties will appear before Judicial Magistrate Ist Class, Sirsa on 18.5.1992. The trial Court will proceed further in the matter and dispose of the case expeditiously as much time has already been lost.