{"id":82911,"date":"1996-02-12T00:00:00","date_gmt":"1996-02-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hari-chand-anr-vs-state-of-delhi-on-12-february-1996"},"modified":"2018-05-30T04:30:03","modified_gmt":"2018-05-29T23:00:03","slug":"hari-chand-anr-vs-state-of-delhi-on-12-february-1996","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hari-chand-anr-vs-state-of-delhi-on-12-february-1996","title":{"rendered":"Hari Chand & Anr vs State Of Delhi on 12 February, 1996"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Hari Chand & Anr vs State Of Delhi on 12 February, 1996<\/div>\n
Equivalent citations: 1996 AIR 1477, \t\t JT 1996 (2)\t140<\/div>\n
Author: M S.B.<\/div>\n
Bench: Majmudar S.B. (J)<\/div>\n
           PETITIONER:\nHARI CHAND & ANR.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF DELHI\n\nDATE OF JUDGMENT:\t12\/02\/1996\n\nBENCH:\nMAJMUDAR S.B. (J)\nBENCH:\nMAJMUDAR S.B. (J)\nANAND, A.S. (J)\n\nCITATION:\n 1996 AIR 1477\t\t  JT 1996 (2)\t140\n 1996 SCALE  (2)16\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nHANSARIA, J.\n<\/p>\n
     A valiant and dutiful custom officer risked his life to
\nfight the  mighty  under-world\tof  smugglers;\tunarmed\t and
\nsingle-handedly. And  see !  he succeeded after hot chase on
\nhis motorcycle\t– smuggler  being in  a car.  The result was
\nsmuggling of  gold worth  Rs.8\tcrores\twas  prevented.\t The
\nregard ?  He has  been made  to\t face  a  prosecution  under
\nSection 302  of the  IPC at  the behest\t of the\t CBI, who is
\nbrought\t  hurriedly   and   for\t  undisclosed\treasons\t  to
\ninvestigate, inasmuch  as in  the scuffle  which  had  taken
\nplace  between\tthe  appellant-official\t and  the  suspected
\nsmuggler, during  the course  of which\ta big  – sized knife
\n(dagger) carried  by the  run away  was used,  the  smuggler
\ndied, because  of the  injuries sustained at the hand of the
\nappellant, who had as many as 22 injuries on his person.\n<\/p>\n
2.   The CBI  says the injuries were self-inflicted. The CBI
\nhas taken this stand because, according to it, the appellant
\nhad an ulterior motive in killing the deceased, which was to
\nshare reward  relating to  recovery of\tsmuggled gold  worth
\nRs.28 lacs.  The reward had, however, become due in 1984 and
\nthe present  occurrence had  taken place  on 16.5.1991.\t How
\nfar-fetched is\tthe imputed  motive ?  The High Court itself
\nhas disbelieved\t this and  has really criticized the CBI for
\nsuggesting the\tsame. This  is,\t however  not  all.  As\t the
\nfurther case  of the  CBI is  that no  records\twere  placed
\nbefore it  to show  that the appellant had prior information
\nof smuggling,  following  which\t the  smuggler\twas  chased.
\nAnother material  used against\tthe appellant  is,  his\t so-
\ncalled abscondence.\n<\/p>\n
3.   None of  the aforesaid  has legs  to  stand,  as  would
\nappear\tfrom   what  is\t  being\t stated\t  later.  A   biased
\ninvestigation of  the type  at hand  from the CBI has indeed
\npained us,  because people  of this  country has  still high
\nhopes from  it, which would get dashed if bias creeps in its
\ninvestigation.\tBut  then,  the\t deceased  was\tno  ordinary
\nmortal, as  he was  a brother  of one time Chief Minister of
\nGoa; and the occurrence had taken place in Goa.\n<\/p>\n
     (a)  rummage and search any part of
\n     the aircraft, vehicle or vessel;\n<\/p>\n
     (b)  examine and  search any  goods
\n     in the  aircraft, vehicle or vessel
\n     or on the animal;\n<\/p>\n
     (c)  break open  the  lock\t of  any
\n     door or  package for exercising the
\n     powers conferred by clauses (a) and\n<\/p>\n
     (b), if the keys are withheld.\n<\/p>\n
(2>  Where for the purposes of sub-section (1) –\n<\/p>\n
     (a)  it becomes  necessary to  stop
\n     any vessel\t or compel  any aircraft
\n     to land, it shall be lawful for any
\n     vessel or\taircraft in  the service
\n     of the  Government while flying her
\n     proper  flag   and\t any   authority
\n     authorized in  this behalf\t by  the
\n     Central Government\t to summon  such
\n     vessel to\tstop or\t the aircraft to
\n     land, by  means of an international
\n     signal, code  or  other  recognized
\n     means, and\t thereupon  such  vessel
\n     shall  forthwith\tstop   or   such
\n     aircraft shall  forthwith land; and
\n     if it  fails to do so, chase may be
\n     given  thereto  by\t any  vessel  or
\n     aircraft as  aforesaid and if after
\n     a gun  is fired  as  a  signal  the
\n     vessel  fails   to\t stop\tor   the
\n     aircraft fails  to land,  it may be
\n     fired upon;\n<\/p><\/blockquote>\n
     (b)  it becomes  necessary to  stop
\n     any vehicle  or animal,  the proper
\n     officer may  use all  lawful  means
\n     for stopping  it,\tand  where  such
\n     means fail,  the vehicle  or animal
\n     may be fired upon.”\n<\/p><\/blockquote>\n
4.   What finds the appellant before this Court is denial of
\nthe protection\tmade available\tby section 155 of the Custom
\nAct, 1962 (the Act). That section has provided:\n<\/p>\n
     “Section 155.  Protection of action
\n     under  the\t Act.  –  (1)  No  suit,
\n     prosecution    or\t  other\t   legal
\n     proceedings shall\tlie against  the
\n     Central Government\t or any\t officer
\n     of\t the   Government  or\ta  local
\n     authority\tfor  anything  which  is
\n     done, or  intended to  be\tdone  in
\n     good faith,  in pursuance\tof  this
\n     Act or the rules or regulations.
\n     (2)  No  proceeding  other\t than  a
\n     suit shall be commenced against the
\n     Central Government\t or any\t officer
\n     of\t the   Government  or\ta  local
\n     authority for  anything  purporting
\n     to be done in pursuance of this Act
\n     without\tgiving\t  the\t Central
\n     Government\t or   such   officer   a
\n     month’s previous  notice in writing
\n     of the  intended proceeding  and of
\n     the cause\tthereof,  or  after  the
\n     expiration of three months from the
\n     accrual of such cause.”\n<\/p><\/blockquote>\n
5.   As section\t 155 has  nexus with performance of official
\nact, let  it be seen what has been empowered by the Act on a
\nperson like  the appellant. This is spelt out by section 106
\nof the Act reading as below :\n<\/p>\n
     “Section 106.  Power  to  stop  and
\n     search conveyances. – (1) Where the
\n     proper  officer   has   reason   to
\n     believe that  any aircraft, vehicle
\n     or animal in India or any vessel in
\n     India or  within the Indian customs
\n     waters has\t been, is  being, or  is
\n     about to  be, used in the smuggling
\n     of any  goods or in the carriage of
\n     any goods which have been smuggled,
\n     he may  at any  time stop\tany such
\n     vehicle, animal  or vessel\t or,  in
\n     the case  of an aircraft, compel it
\n     to land, and –\n<\/p><\/blockquote>\n
6.   Let it  be seen  why the  protection of section 155 has
\nbeen denied  and why  CBI insists  that this  section has no
\noperation. The\tfirst premise  of denial is that there is no
\nmaterial to  show if the appellant was really engaged in any
\nofficial work  inasmuch as there is no writing showing prior
\ninformation relating  to attempted smuggling. This, however,
\nis an  obvious untenable stand inasmuch as from the impugned
\norder it  is clear  that on  the day of occurrence itself it
\nwas told  within a  few hours to the local police, which had
\ncome at the scene around 2 p.m. while the * was around 12.30
\np.m., that  the appellant  had been working “on some tip-off
\nabout smuggling\t of gold”.  In this  connection\t Shri  Bobde
\nappearing for  the appellant,  has drawn  our attention to a
\ncomplaint filed\t in the\t Court of Chief Judicial Magistrate,
\nMargo, being  subject matter of Criminal Case No.1\/C\/94\/A by
\nthe Union  of  India  through  the  Assistant  Collector  of
\nCustoms (P),  Marmagao, against\t 8 accused  persons in which
\nthere is  a clear  statement in\t para  3  that\tpursuant  to
\ninformation received  by the  Custom Department in May, 1991
\nregarding  the\t landing  of  contraband  gold,\t the  Custom
\nOfficer, Shri  Costao Fernandes,  the appellant\t herein, was
\nkeeping vigilance  of the said area. The further averment in
\nparagraph 4  is that  about 11\ta.m.  Shri  Costao  received
\ninformation regarding  some movement  sufficient to  suspect
\nlanding of  gold and  whereupon he immediately rushed to the
\nsite.\n<\/p>\n
7.   Addl. Solicitor General, Shri Altaf Ahmad, submits that
\nthis is\t the stand  of Union  of India\tthrough\t its  Custom
\nDepartment in  some other  case, whereas in the present case
\nthe CBI\t could not  be satisfied  during investigation about
\nany such prior information. The mildest observation we would
\nmake in this context is that the CBI has exposed inasmuch as
\nthe Department’s stand relating to prior information has not
\nfound place  for the first time in the complaint, but was so
\nmentioned on 16th May, 1991 itself, and within few hours, by
\none  Shri  L.R.\t Naik.\tSuperintendent\tof  Custom,  Revenue
\nIntelligence, Marmagoa,\t who  informed\tabout  the  same  to
\nP.S.I. Mohan  Naik  who\t was  the  police  officer  who\t had
\nreceived the  telephone call at about 1.10 p.m. of 16th from
\nHead constable,\t R.G. Prabhu  giving  the  information\tthat
\nbrother of  Churchill Alemao  (who was once a Chief Minister
\nof Goa)\t has been  murdered.  This  shows  that\t the  Custom
\nDepartment had not cooked up this story subsequently.\n<\/p>\n
8.   To boost  up is  case, the\t CBI has further stated that
\nafter the occurrence the appellant was not available for two
\ndays, i.e.  he was  absconding, which shows his guilty mind.
\nIt is  true that  the appellant\t had surrendered  before the
\npolice on  18th, but  that was\tbecause he  became  mortally
\nafraid of  his life after what had happened on 16th; and so,
\nsurrender before the police was to seek protection. Where is
\nthe guilty mind then ?\n<\/p>\n
9.   Coming to\tthe case of self-infliction wounds, the same
\nis sought  to be brought home by the Addl. Solicitor General
\nby referring to the “Hurt Certificate”, which has noted that
\non the\tappellant being\t examined on  18th May,\t 22 injuries
\nwere found  on his  person. The learned counsel refers us to
\ncolumn 5  of this certificate dealing with “Duration of each
\nhurt” and  submits that as the duration was of 24 hours, the
\nsame would show that the injuries were received on 17th, and
\nnot on\t16th. This  establishes a case of self-infliction of
\ninjuries, contends the counsel. He, however, missed the mark
\n“7” put\t before 24 hours, which shows that the time was more
\nthan 24 hours. So, this part of CBI’s case also falls to the
\nground.\n<\/p>\n
10.  Faced with\t the position  that the wounds were not self
\ninflicted and  the killing  could have\tbeen, indeed was, in
\nself-defence, the  submission is  that protection of section
\n155, nonetheless,  is not  available because  killing  of  a
\nsmuggler is  not a part of the official duty, which alone is
\nprotected by  this section.  It is  laboured hard to impress
\nthat the official duty, in the present case, was confined to
\nstop the  movement of  the vehicle and no farther. After the
\nvehicle was  got stopped, the submission is, that the act in
\nperformance of\tofficial duty  was over\t and  the  appellant
\ncould not  have scuffled  with the  deceased leading  to the
\nlatter’s death.\t We cannot  agree inasmuch as on 16th itself
\nit was\tstated at  the spot  by some watchenrs to the police
\nofficer who  came there\t that the  appellant was  “trying to
\ngrab the ignition key” of the vehicle which was being driven
\nby the deceased. This shows that the appellant was trying to
\nprevent the  mobility of  the vehicle.\tIf while  engaged in
\nsuch an\t act, the  appellant was  assaulted, and 22 times at
\nthat,  with   an  instrument  like  knife  causing  bruises,
\nabrasions, incised  wounds on  various parts  of  body\tlike
\ncheek, chest,  back, shoulder,\tarm, leg and thigh, he could
\nnot have  allowed himself  to be  killed, but  had to defend
\nhimself by  retaliation. The  killing was  thus not divorced
\nfrom the  performance of the duty enjoined by section 106 of
\nthe Act.\n<\/p>\n
11.  Shri Bobde has brought to our notice in this connection
\nthe decision  of this  Court in\t Bhappi Sen  vs. Rampal Sen,
\n1981 (Supp.)  SCC 12  in which\tprotection of Section 108 of
\nthe Gold  (Control) Act, 1968, which is in pari materia with
\nsection 155  of\t the  Act,  was\t made  available  to  custom
\nofficials who had fired at the inmates of a raided jewellery
\nshop causing  gun shot\twounds to  the son of the appellant,
\nwhich had been done as three persons of the custom party had
\nreceived head  injuries caused\tby blunt weapon. The learned
\ncounsel submits\t that the  same view  merits to\t be taken in
\nthis case.  Addl. Solicitor General, however, urges that the
\nobservation made  by the  Court in paragraph 7 shows that it
\ndid not\t fully approve\tthe quashing of the complaint by the
\nHigh Court  by giving  the benefit  of section 108. But, the
\nrelevance and  importance of the judgment is that protection
\nof section  108 was  not denied\t even when, while engaged in
\nduty of\t search, bodily\t harm had  been caused\tto the other
\nside, when the same had become necessary in self-defence.\n<\/p>\n
12.  Addl. Solicitor General has another submission to make.
\nThe same  is that  being faced with an organized under-world
\nof smugglers,  the appellant  should  have  remembered\tthat
\n“discretion is\tthe best  part of  valor”. If  the appellant
\nwould have  done so,  he would\thave perhaps saved his skin,
\nbut could  not have saved the larger interest of the society
\nand nation,  which does\t lie in\t preventing  smuggling.\t The
\nappellant showed  valor not  in\t taking\t to  heels,  but  in
\nfighting. We  have all\tpraise for  such an  officer and  we
\nwould not  allow him  to  he  prosecuted,  much\t though\t the
\nsmugglers would\t want it  to be\t so. Indeed the appellant is
\nbeing persecuted,  not prosecuted,  as the  action smacks of
\nrevenge seeking\t to take  his life  because he has taken the
\nlife of\t a smuggler;  of course, one close to political high
\nups of\tGoa. Let  this not  be countenanced.  Let this head-
\nhunting be not permitted.\n<\/p>\n
13.  The prosecution  against the  appellant is,  therefore,
\nquashed. The appeal stands allowed accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Hari Chand & Anr vs State Of Delhi on 12 February, 1996 Equivalent citations: 1996 AIR 1477, JT 1996 (2) 140 Author: M S.B. Bench: Majmudar S.B. (J) PETITIONER: HARI CHAND & ANR. Vs. RESPONDENT: STATE OF DELHI DATE OF JUDGMENT: 12\/02\/1996 BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) ANAND, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-82911","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHari Chand & Anr vs State Of Delhi on 12 February, 1996 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/hari-chand-anr-vs-state-of-delhi-on-12-february-1996\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hari Chand & Anr vs State Of Delhi on 12 February, 1996 - 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