Crl.p/9780/2017 Of Sri K Ramaswamy v. The Income Tax Department

L IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16 DAY OF AUGUST 2018 BEFORE. THE HON’‘BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO. 9780 OF 2701A/WCRIMINAL PETITION NO. 9775 OF 2701CRIMINAL PETITION NO. 9776 OF 2701CRIMINAL PETITION NO. 97/77 OF J2ZCRIMINAL PETITION NO. 9778 OF J2ZOCRIMINAL PETITION NO. 9779 OF 2701 BEI|WEEN SRI K RAMASW AMYAGED ABOUT 6/7 YEARSS/O LATE KRISHNAPPA|R/AT 2930/1. K-23 -ASHWINI,.ST. MARY ‘S CONVENT CIRCLE,JLB ROAD, CHAMUNDIPURAM,MYSORE 5/70 004. ... PETITIONER|. (COMMON)(BY SRI: KIRAN S JAVALI, ADVOCATE) AND THE INCOME TAX DEPARTMENTBY ASSISTANT COMMISSIONER OF INCOME TAX,CIRCLE 1(1), NO.55/1,“SHILPASHREE’, VIDYARANYA COMPLEXOPP. STERLING THEATRE, VISHVESHWARANGAR,MYSORE. 2 NOW AT NO.22/16, RESIDENCY ROAD,NAZARBALD,MYSORE 5/70 O10. .., RESPONDENT (COMMON). (BY SRI: JEEVAN J. NEERALGI, ADVOCATE- ABSENT) CRIMINAL PETITION NO. 9780 OF 201/ THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C)PRAYING TO © 1)SET|ASIDE.THEORDER|DATED30.08.2017.IN|CRL.R.P.NO.232/2016 PASSED BY THE I ADDITIONAL SESSIONS.JUDGE,MYSORE,AND|CONSEQUENT|THERETO.THE|PROCEEDINGS IN C.C.NO.173/2015 ON THE FILE OF THE COURT|OF III ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE,INITIATED AGAINST THE PETITIONER. 2)|SET|ASIDE.THEORDER|DATED2/7.06.2015IN|C.C.NO.173/2015 ON THE FILE OF THE COURT OF III.ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE OF.TAKING COGNIZANCE AND ISSUING OF SUMMONS TO THE.PETITIONER AND DISCHARGE THE PETITIONER. CRIMINAL PETITION NO. 97/75 OF 201 THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.CPRAYING TO © 1)SET|ASIDE.THEORDER|DATED30.08.2017.IN|CRL.R.P.NO.227/2016 PASSED BY THE I ADDITIONAL SESSIONS.JUDGE,MYSORE,AND|CONSEQUENT|THERETO.THE|PROCEEDINGS IN C.C.NO.1/70/2015 ON THE FILE OF THE COURTOF III ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE,INITIATED AGAINST THE PETITIONER.2)|SET|ASIDE.THEORDER|DATED2/.06.2015.IN|C.C.NO.170/2015 ON THE FILE OF THE COURT OF III. ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSQORE,OFTAKING COGNIZANCE AND ISSUING OF SUMMONS TO THE.PETITIONER AND DISCHARGE THE PETITIONER. CRIMINAL PETITION NO. 97/76 OF 201 THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.CPRAYING TO © 1)SET|ASIDE.THEORDER|DATED30.08.2017.IN|CRL.R.P.NO.228/2016PASSEDBY|THE|TADDITIONALSESSIONS JUDGE, MYSORE, AND CONSEQUENT THERETO THE.PROCEEDINGS IN C.C.NO.142/2015 ON THE FILE OF THE COURT|OF III ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE,INITIATED AGAINST THE PETITIONER. 2)|SET|ASIDE.THEORDER|DATED2/7.06.2015IN|C.C.NO.142/2015 ON THE FILE OF THE COURT OF III.ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE OF.TAKING COGNIZANCE AND ISSUING OF SUMMONS TO THE.PETITIONER AND DISCHARGE THE PETITIONER. CRIMINAL PETITION NO. 97/77 OF 2O1 THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.CPRAYING TO © 1)SET|ASIDE.THEORDER|DATED30.08.2017.IN|CRL.R.P.NO.230/2016PASSEDBY|THE|TADDITIONALSESSIONS JUDGE, MYSORE, AND CONSEQUENT THERETO THE.PROCEEDINGS IN C.C.NO.172/2015 ON THE FILE OF THE COURT|OF III ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE,INITIATED AGAINST THE PETITIONER. 2)|SET|ASIDE.THEORDER|DATED2/.06.2015.IN|C.C.NO.172/2015 ON THE FILE OF THE COURT OF III.ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE OF.TAKING COGNIZANCE AND ISSUING OF SUMMONS TO THE.PETITIONER AND DISCHARGE THE PETITIONER. CRIMINAL PETITION NO. 9778 OF 2O1/ THIS CRIMINAL PETITION IS FILED U/S.482- CR.P.CPRAYING TO © 1)SET|ASIDE.THEORDER|DATED30.08.2017.IN|CRL.R.P.NO.231/2016 PASSED BY THE I ADDITIONAL SESSIONS.JUDGE,MYSORE,AND|CONSEQUENT|THERETO.THE|PROCEEDINGS IN C.C.NO.143/2015 ON THE FILE OF THE COURT|OF III ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE,INITIATED AGAINST THE PETITIONER. 2)|SET|ASIDE.THEORDER|DATED2/7.06.2015IN|C.C.NO.143/2015 ON THE FILE OF THE COURT OF III.ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE, OF.TAKING COGNIZANCE AND ISSUING OF SUMMONS TO THE.PETITIONER AND DISCHARGE THE PETITIONER. CRIMINAL PETITION NO. 97/79 OF 20O CRIMINAL PETITION NO. 9778 OF 2O1/ THIS CRIMINAL PETITION IS FILED U/S.482- CR.P.CPRAYING TO © 1)SET|ASIDE.THEORDER|DATED30.08.2017.IN|CRL.R.P.NO.231/2016 PASSED BY THE I ADDITIONAL SESSIONS.JUDGE,MYSORE,AND|CONSEQUENT|THERETO.THE|PROCEEDINGS IN C.C.NO.143/2015 ON THE FILE OF THE COURT|OF III ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE,INITIATED AGAINST THE PETITIONER. 2)|SET|ASIDE.THEORDER|DATED2/7.06.2015IN|C.C.NO.143/2015 ON THE FILE OF THE COURT OF III.ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE, OF.TAKING COGNIZANCE AND ISSUING OF SUMMONS TO THE.PETITIONER AND DISCHARGE THE PETITIONER. CRIMINAL PETITION NO. 97/79 OF 20O THIS CRIMINAL PETITION IS FILED U/S.482- CR.P.CPRAYING TO ©1)SET|ASIDE.THEORDER|DATED30.08.2017.IN|CRL.R.P.NO.229/2016 PASSED BY THE I ADDITIONAL SESSIONS.JUDGE,MYSORE,AND|CONSEQUENT|THERETO.THE|PROCEEDINGS IN C.C.NO.171/2015 ON THE FILE OF THE COURT|OF III ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE,INITIATED AGAINST THE PETITIONER. 2)|SET|ASIDE.THEORDER|DATED2/7.06.2015IN|C.C.NO.171/2015 ON THE FILE OF THE COURT OF III.ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE, OF.TAKING COGNIZANCE AND ISSUING OF SUMMONS TO THE.PETITIONER AND DISCHARGE THE PETITIONER. THESE CRIMINAL PETITIONS COMING ON FOR ADMISSIONTHIS DAY, THE COURT MADE THE FOLLOWING:- " ORDER Heard the learned counsel for the petitioner. | Learned counsel for the respondent is absent.In all these petitions, the petitioner nas questioned thevalidity of the direction issued by the Revisional Court directing»tne learned Magistrate to proceed with the complaint. | Since common question of law and facts are involved,tnese petitions are disposed of by this common order. 2. The outline facts necessary for the disposal of thesepetitions are that the respondent - The Income-Tax Department|filed private complaints against the petitioner herein alleging.commission of offence punishable under section 276CC of The.Income-Tax Act, 1961. Tne learned Magistrate issued summons.to the petitioner/accused without taking cognizance of the said.offence.Hence,the.petitioner/accused|approached the.Revisional Court under section 397 Cr.P.C.. After hearing the|parties, the learned Sessions Judge by the orders impugned|nerein set aside the order passed by the learned III Addl. Senior|Civil Judge & CJM, Mysore in respective private complaints and. directed the learned Magistate to peruse the contents of the.complaints and other materials placed by the complainant and.thereafter to proceed in accordance with law. 3. The contentions of the learned counsel for the petitionerin all the above petitions is that the direction issued by the.Revisional Court has the effect of directing the trial court to)review its own order which ts not permissible in law. In support|of his argument, the learned counsel has placed reliance on the.following authorities:-_ 1.Kalabnarati Advertising Vs. Hemant VimainatnNarichania and others, AIR 2010 (9) SCC 437. |Narichania and others, AIR 2010 (9) SCC 437. | ? Major Chandra Bhan Singh Vs. Latafat Ullah Khan and otners, (1979) 1 SCC 321.)and otners, (1979) 1 SCC 321.) 3.Dr(Smt.) Kuntesh Gupta Vs. Management. ofHindu Kanya Manavidyalaya, Sitapur(U.P.) andotners, (1987) 4 SCC 525. —Hindu Kanya Manavidyalaya, Sitapur(U.P.) andotners, (1987) 4 SCC 525. — 4 State of Orissa and others Vs. Commissioner ofLand records & Settlement, Cuttack and others.Land records & Settlement, Cuttack and others. 5.(2008) 2 SCC /05 - Sunita Jain Vs. Pawan|Kumar and Others, (1998) 7 SCC 162.Kumar and Others, (1998) 7 SCC 162. 6.Hindustan Petroleum Corporation Ltd., Vs. AsnokRangnba Ambre, (2008) 2 SCC /17. —Rangnba Ambre, (2008) 2 SCC /17. — / B.C. Suresn Vs. Sumithra, ILR 2017 KAR 269. J 8.Hart Singh Mann Vs. Harbhajan Singh Bajwa andothers, (2001) 1 SCC 169.others, (2001) 1 SCC 169. °9Ram Lal Vs. State of Rajasthan.,(2001) 1 SCC1/5,1/5, 10.Adalat Prasad Vs. Rooplal Jindal and Others(2004) 7 SCC 338.(2004) 7 SCC 338. 4 State of Orissa and others Vs. Commissioner ofLand records & Settlement, Cuttack and others.Land records & Settlement, Cuttack and others. 5.(2008) 2 SCC /05 - Sunita Jain Vs. Pawan|Kumar and Others, (1998) 7 SCC 162.Kumar and Others, (1998) 7 SCC 162. 6.Hindustan Petroleum Corporation Ltd., Vs. AsnokRangnba Ambre, (2008) 2 SCC /17. —Rangnba Ambre, (2008) 2 SCC /17. — / B.C. Suresn Vs. Sumithra, ILR 2017 KAR 269. J 8.Hart Singh Mann Vs. Harbhajan Singh Bajwa andothers, (2001) 1 SCC 169.others, (2001) 1 SCC 169. °9Ram Lal Vs. State of Rajasthan.,(2001) 1 SCC1/5,1/5, 10.Adalat Prasad Vs. Rooplal Jindal and Others(2004) 7 SCC 338.(2004) 7 SCC 338. 11.Harbnajan Singn Vs. Karam Singn and others, |AIR 1966 SC 641.AIR 1966 SC 641. 4. With reference to para 12 of tne decision in.KalabnheratiAdvertising Vs. Hemant Vimainath WNaricnania and Others,(2010) 9 Page 437, learned counsel has empnasized that “It is settied legal proposition that unless the statute/rules so permit, thereviewapplicationIsnot.maintainableIn|CaSeOf judicial/quasi-judicial orders. In the absence of any provision in.the Act granting an express power of review, it is manifest that a.review could not be made and the order in review, if passed, is ultra vires, illegal and without jurisdiction.” 5. On the same point, the learned counsel has referred to para 15 of the decision in.Adalat Prasad Vs. Rooplal Jindal andothers, (2004) 7 SCC 338, Wherein it is observed tnat “if a|Magistrate takes cognizance of an offence, issues process|without there being any allegation against the accused or any. material implicating the accused or in contravention of provisions|of Sections 200 and 202, the order of the Magistrate may be.vitiated, but then the relief an aggrieved accused can obtain atthat stage is not by invoking Section 203 of the Code because.the Criminal Procedure Code does not contemplate a review of.an order. Hence, in the absence of any review power or inherent.power with the subordinate criminal courts, the remeay lies in|invoking Section 482 of the Code.” 6. In my view, the argument canvassed by the learnedcounsel is misconceived. The proposition of law enunciated in the.above decision is not applicable to the facts of the present cases. |It is not that the learned Magistrate has by nimself sought to.review the order; on the other hand, the omission to take.cognizance of the alleged offence was found fault with by the.petitioner and accordingly, the petitioner/accused sought to set|aside the proceedings, but the Revisional Court in exercise of the.power under section 397 Cr.P.C. has directed the learned|Magistrate to consider the allegations made in the complaint and|tnereafter proceed in accordance witn law. 7. Section 397 Cr.P.C. empowers the High Court or theSessions Court to call for and examine the records of any.proceeding before any inferior Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the.correctness, legality or propriety of any finding, sentence or.order, recorded or passed, and as to the regularity of any.proceedings of such inferior Court, and may, when calling for|such record, direct that the execution of any sentence or orderbe suspended, and if the accused is in confinement, that he be)released on bail or on his own bond pending the examination of|the record. The revisional Court having noticed the irregularitycommitted by the learned Magistrate by proceeding with the.matter without taking cognizance of the offence has directed the|inferior court to set right the said irregularity by proceeding with.the matter in accordance with law. Therefore, the said direction.cannot be construed as permitting the Court to review its own.order as contended. Even otherwise, Section 460 (e) lays down.that if any Magistrate not empowered by law to do any of the.following things viz., :- (a) Xxx (Db) Xxx (Cc) XXX (d) Xxx (e) to take cognizance of an offence under|clause(1) or clause (b) of sub-section (1) of|section 190. (a) Xxx (Db) Xxx (Cc) XXX (d) Xxx (e) to take cognizance of an offence under|clause(1) or clause (b) of sub-section (1) of|section 190. erroneously in good faith does that thing, his proceedings shallnot be set aside merely on the ground of his not being so)empowered. | 8. Viewed in the light of the above provisions and for the reasons discussed above, the direction issued by the revisional|Court in my view does not suffer from any error or illegalitywarrantinginterferenceunder|Section487Cr.P.C.The.contentions are rejected. Accordingly, the petitions are dismissed. Sd/- JUDGE| *mn/-_