Issuance of notice u/s 155(2) not necessary.

This is a petition under Sec.482 of the Code of Criminal Procedure to call for the records in C.C.No.237 of 1986 on the file of the Judicial First Class Magistrate No.2, Madurai and quash the same.

2. The case of the petitioners is that they apprehended the respondent in respect of some acts of smuggling on 16.1.1986 and that in order to forest all the subsequent detention or prosecution of the respondent for his offence, he has filed this complaint against the customs officers concerned, seven in number. The complaint is for offences under Secs.448, 342, 355, 323, 324 and 506, Part II of the Indian Penal Code.

3. The first ground urged by the learned counsel for the petitioners is that the alleged acts took place upon the apprehension of the complainant on 16.1.1986 and that the complainant was filed only on 6.3.1986 belatedly and therefore, the Magistrate ought not to have taken the complaint on file. This contention is utterly unacceptable. The delay in filing the complaint will have to be explained by the complainant, and the Magistrate while ascertaining the truth of the case, will take into account the delay. But the lapse of time between 16.1.1986 the date of the alleged occurrence and 6.3.1986, the date of complaint, does not make the complaint void.

4. The second ground urged is that the complaint was made without the statutory notice contemplated under Sec.155 of the Customs Act and therefore, the proceedings should be quashed. Sub-sec(2) of Sec.155 of the Act on which reliance is placed reads as follows:

“No proceedings other than a suit shall be commenced against the Central Government or any officer of the Government 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 officers a month's previous notice in writing of the intended proceeding and of the allegations thereof, or after the expiration of three months from the accrual of such cause.”

It is clear therefrom that no proceeding can be commenced for anything purporting to be done in pursuance of the Act without notice. When I read the complaint, the acts imputed to the officers consis. of threat of implicating the complainant and his family members and torturing them, slapping the complainant on the cheek, stripping off the clothes of the complainant, kicking the complainant with boots, beating with stick, fisting on the face of the complainant, compelling the complainant to sign on a paper without allowing him to see the contents thereof, beating with chappals and threatening with dire consequences if the complainant dared to take steps against the ill-treatments meted out by them. The above acts obviously cannot be said to have been accomplished as purporting to be done in pursuance of the Act and therefore, Sec.155, is not attracted and no notice is necessary to file a complaint against the officers concerned regarding such acts. The learned counsel for the respondent brought to my notice a judgment on the same line of the Kerala High Court reported in Kutty Krishnan Nair v. Mohammed Kutty Krishnan Nair v. Mohammed 1974 MLJ. (Crl.) 8 in which the decision of this Court in Sakuntala Bai v. Venkatakrishna Reddi Sakuntala Bai v. Venkatakrishna Reddi (1952)1 MLJ. 545 has been referred to. Therefore, it is clear that the proceedings cannot be quashed on account of absence of notice, taking into account the nature of the acts imputed to the officers.

5. It was, however, contended by the learned counsel for the petitioners that this complaint was filed by the respondent in order to deter the officers from taking further action against him and that if the officers were to be exposed to frivolous complaints by smugglers, the officers would become reluctant to perform their duties effectively.

6. Proneness to perform duties should is no manner be discouraged and no officer should suffer in the slightest way for anything purported to be done in pursuance of the Act. Therefore,