DGCEI Officers to face prosecution for assault of assessee - Is routine slap excessive?
THE charge against the DGCEI officers: It seems the DGCEI got information that a Director of an assessee company against whom summons were served was lodged in a hotel in Delhi's Paharganj. On 10th November 2009, the officers of DGCEI between 10 pm and 11 pm visited the hotel and forcefully took the assessee to their R K Puram office. Arrest was not shown immediately, but only on the next day. It was alleged that the assessee was kept under illegal custody and put to physical and mental torture. The medical examination recorded that he was beaten. CCTV footage of the hotel also incriminated the officers.
The ACMM took cognizance of the case booked against the officers charging them with offences under the following Sections of the IPC
323 - Voluntarily causing grievous hurt,
348 - Wrongful confinement to extort confession,
365 - Kidnapping or abducting with intent secretly and wrongfully to confine person,
368 - Wrongfully concealing or keeping in confinement, kidnapped or abducted person,
506 - Criminal Intimidation
34 - Acts done by several persons in furtherance of common intention.
120-B - criminal conspiracy
The ACMM rejected the argument that the officers were entitled to a protection under Section 40 of Central Excise Act or a sanction would be necessary under Section 197 Cr. P.C. as he considered that the act of forcibly taking the petitioners from Hotel to R.K. Puram office and using force and confinement in R.K. Puram, without showing arrest, and causing injuries were not covered within the duties of the DGCEI officers.
The DGCEI officers approached the Delhi High Court to get the proceedings before the ACMM quashed.
The High Court was kind to quash the proceedings observing, “Even if it is presumed that a slap was given, that cannot be considered use of excess force for arresting a person or for detaining a person. The action of the officers in taking the respondent from hotel to the office for inquiry and thereafter arresting him after the inquiry were within the scope of duties and the officers enjoyed protection of Section 40 of the Central Excise Act and it cannot be said that their act was not done in good faith merely on the complaint of the complainant and at the most they could be charged under Section 20 of Central Excise Act, by the Court where trial of excise case was going on.” -
This should have been a happy conclusion for the DGCEI officers, but the assessee was not one to take things lying down and took the matter to the Supreme Court. The Supreme Court recently held, The High Court, though has noticed the number of injuries sustained by the Complainant, but on a very technical ground, has allowed the petition and set aside the entire proceedings. The High Court was not justified in passing the impugned judgment and order. Therefore, while allowing these appeals, the impugned judgment and order passed by the High Court is set aside. The learned Magistrate is directed to complete the criminal proceedings as early as possible, at any rate, within six months from the date of receipt of a copy of this Court's order.
So, the matter is back in the court of the ACMM, where it all began in 2009 and the DGCEI officers face all the above provisions of the IPC.
I am not even remotely suggesting that the DGCEI officers were wrong. I know some righteous innocent officers who were made victims of false cases by smart assessees - but the fact is - the Law does not permit you to assault somebody whom you consider guilty and who is eligible for release on bail immediately on arrest.