COSTAO FERNANDES versus STATE AT THE INSTANCE OF D.S.P, CBI, BOMBAY

Citation: [1996] 2 S.C.R. 868 · Decided: 20-02-1996 · Supreme Court of India · Bench: G.N. RAY · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
COSTAO FERNANDES 
v. 
STATE AT THE INSTANCE OF D.S.P, CBI, BOMBAY 
FEBRUARY 20, 1996 
B 
[G.N. RAY AND B.L. HANSARIA, JJ.] 
Customs Act, 1962-Sections 155 and 106-Protection against criminal 
trial u/s 155-Considerations for Court-Accused, Custom Officer on official 
duty as Preventive Officer to look out for smuggling activities-Attempt to stop 
C a vehicl~Accused received va1ious injwies-Prosecution for causing death 
of driver of vehicle, suspected smuggler-Claim of protection u/s 155-Al~ 
lowed-Prosecution quashed. 
The appellant, a custom officer had been prosecuted u/s 302 IPC at 
D the behest of the CBI, as in the scuffie between the appellant official and 
a suspected smuggler, the smuggler died because of the injuries sustained 
at the hand of the appellant who had as many as 22 injuries on his person. 
The CBI alleged that the injuries on the appellant were self-inflicte~ as the 
appellant had an ulterior motive in killing the deceased, which was to share 
the reward relating to recovery of smuggled _gold worth Rs. 28 lacs; that 
E no records were placed before it to show that the appellant had informa-
tion of smuggling, following which the smuggler was chased and that after 
the occurrence the appellant was not available for two days. 
The appellant challenged his prosecution on ground of denial of the 
F 
protection made available by Section 155 of the Custom Act, 1962. The 
appellant was denied the protection on the ground that there was no 
material to show that the appellant was really engaged in any official work 
in as much as there was no writing showing prior information relating to 
attempted smuggling and the killing of a smuggler is not a part of the 
official duty, and the official duty, as in the present case, was confined to 
G stop the movement of the vehicle and no further and therefore, the appel-
lant was not entitled to claim protection against initiation of a criminal 
trial for causing death of the driver of the vehicle u/s 155 of the Custom 
Act and if a custom officer while attempting to stop a vehicle involved in 
smuggling activities had faced resistance from the driver or occupant of 
H the vehicle which had necessitated to taking of action by way of right to 
868 
_J 
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COSTAO FERNANDESv. STATE 
869 
private defence, the concerned officer cannot claim protection at the A 
threshold in stopping the criminal trial u/s 155 of the Act. 
Allowing the appeal, this Court 
HELD: (Per B.L. Hansaria, J.) 
1.1. From the impugned order it was clear that on the day of 
occurrence itself it was told within a few hours to the local police, which 
had come on the scene that the appellant had been working "on some tip 
B 
off about smuggling of gold." Pursuant to information received by the 
Custom Department regarding the landing of contraband gold, being the C 
Customs Officer the appellant was keeping vigilance of the area. Therefore, 
there was enough material to show that the appellant was engaged in 
official work in as much as there were written documents showing prior 
information relating to attempted smuggling. The CBI has exposed in as 
much as the Department's stand relating to prior information had not 
found place for the first time in the complaint, but was so mentioned prior D 
to that. Material on record showed that the Custom Department had not 
cooked up this story subsequently. [874-C, E, B, 875-A] 
1.2. The appellant had surrendered before the police after two days 
of the incident, but that was because he became mortally afraid of his life E 
after what had happened on that day and so, surrender before the police 
was to seek protection. [875-B] 
1.3. The wounds were not self inflicted and the killing could have 
been, indeed was, in self-defence. There was material on record that the 
appellant was trying to prevent the mobility of the vehicle. If while engaged F 
in such an act, the appellant was assaulted, and 22 times at that with an 
instrument like knife causing bruises, abrasions, incised wounds on 
various parts of body like cheek, chest, back, shoulder, arm, leg and thigh, 
he could not have allowed himself to be killed, but had to defend himself 
by retaliation. The killing was thus not divorced from the performance of G 
the duty enjoined by section 106 of the Customs Act. [875-E, G-H] 
1.4. The appellant showed valour not in taking to heels, but in 
fighting. This Court has all praise for such an officer and he will not be 
allowed to be prosecuted, much tho

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