Vijender Jain, J. (Oral)

( 1 ) THIS matter has been on board, nobody has been appearing on behalf of the parties. In the circumstances, I had appointed Mr. R P Luthra, Advocate, as amicus curiae in the matter.

( 2 ) THIS is a revision petition filed by the petitioner aggrieved by the order of the learned Additional Chief Metropolitan Magistrate dated 18. 8. 1980. Mr. Luthra, learned counsel for the petitioner has contended that on 3. 3. 1977 respondent No. 1, O P Chopra, Inspector Customs (Preventive), produced the petitioner in custody before the learned Metropolitan Magistrate and applied for his remand for four days on the ground that certain smuggled gold was recovered from one Kailash Nath on 2. 3. 1977, who has disclosed that he had obtained the same from the petitioner. Petitioner was arrested on 2. 3. 1977 when he was allegedly beaten between 12. 30 a. m. to 4. 00 a. m during the intervening night of 2nd and 3rd March, 1977 and produced before the Magistrate on 3. 3. 1977. Petitioner opposed the application for remand on the ground that the petitioner had been given sever beating while he was in custody of the customs officer. The Metropolitan Magistrate observed that |-

"there are a number of abrasions and the skin of the accused on the back has turned blue and red as a result of alleged beating. "

( 3 ) THE learned Metropolitan Magistrate rejected the application of the customs for remand of the petitioner to their custody and remanded the petitioner to the judicial custody. The petitioner at that time was having injuries. Mr. Luthra has contended that it was the case of the petitioner that O. P. Chopra, respondent No. 1, with other customs officers had given him beating and he desired to make a complaint against the offenders in the Court. After statement of the petitioner was recorded in the Court on the same day, the learned Metropolitan Magistrate passed the following order |-

"statement of complainant in custody recorded. From the statement recorded on oath that he was caused injuries while in the custody of Customs Department, which injuries I have myself verified. I find that there is a prima facie case under Section 323/34 Indian Penal Code. against O. P. Chopra, Mr. Sobti and Mr. Gangoli, Customs Officers. I therefore take cognizance under section 190 Cr. P. C. against all the three accused. They be summoned. Accused O. P. Chopra is present in Cour today. He is required to furnish personal bond and surety bond in the sum of Rs. 2000. 00 each, failing which he shall be remanded to judicial custody till 17. 3. 1977. Other accused persons be summoned on P. F. "

( 4 ) THEREAFTER it appeard that the respondents, O. P. Chopra, M. L. Sobti and P. K. Gangoli filed application before the Court for their discharge on account of bar of jurisdiction in view of Section 155 (2) of the Customs Act and Section 197 of the Code of Criminal Procedure. The Additional Chief Metropolitan Magistrate allowed the application of the respondents and discharged them vide his order dated 18. 8. 1980. Aggrieved by the said discharge the petitioner filed the present revision petition.

( 5 ) MR. LUTHRA has argued that power to interrogate does not encompass in its fold physical torture and beating by the respondents, more so, when nothing was recovered from the petitioner. Learned counsel has further contended that catena of case law decided by the Supreme Court as well as by this Court, sanction as postulated under Section 197 of the Cr. P. C. is not required in cases where the Act of the Officers/public servants are not in their purported official duty or the act is not in exercise of the colour of their official duty. Therefore, no protection can be claimed under Section 197 of the Cr. P. C. as has been held in the impugned order as it would tantamount to holding as to whatever be the nature of the offence committed by a public servant, he cannot be prosecuted for want of sanction under Section 197 of the Code.

( 6 ) MS. MUKTA Gupta, learned

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