Sri Saurabh Kumar Rai v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNACriminal Miscellaneous No.43811 of 2010 ====================================================== 1.Sri Suman Kumar, son of Late Bhola Prasad Srivastava resident of Mohalla Kankarbagh, P.S. Kankarbagh, Distt-Patna at present posted as Assistant Director of Income Tax (Investigation), Unit-1, Patna. 2.Sri Saurabh Kumar Rai S/O Sri Virendra Kumar Rai Resident of M.G. Road, PS Sadar Distt- Bhagalpur at present posted as Assistant Director of Income Tax (Investigation), Bhagalpur. .... .... Petitioner/s Versus 1.The State Of Bihar 2.Rajendra Singh S/O late Sardar Charan Singh, R/O Khagaul Road, Mithapur, P.S. Jakkanpur, Distt-Patna. …. …. Opposite Party/s Appearance : For the Petitioner/s : Mr. Sandeep Kumar, Adv. For the State : Mr. Jitendra Singh, Sr. Adv. Mr. Vinay Kirti Singh, Adv. CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDICAV ORDER 9. 04.07.2012 Petitioners Suman Kumar and Saurabh Kumar Rai have challenged institution of Jakkanpur P.S. Case No. 246/2010 registered under Sections 420,406,467,468,323,342,354,506,120B of IPC and accordingly prayed for quashing thereof. 2. Rejendra Singh (Respondent No.2) had filed a complaint petition bearing no. 2673(C) of 2010 before learned Chief Judicial Magistrate, Patna showing the date of occurrence in between 08.09.2010 to 10.09.2010 and uptil now against the aforesaid two petitioners along with eight unknown for misuse of their power during course of raid conducted at his residential house as well as business premises and during said course, it has been alleged that they have not allowed the family members to move freely and by such action virtually, wrongfully confined them, did not allow to cook food, misbehaved, abused and tortured the complainant and his family members and further threatened to falsely implicate them along with their Accountant and Lawyer. It has further been alleged that they hurt their religion by puffing smoke over photographs of religious enshrines, golden temple as well as over pious and adorable Gurus. They had also taken their signature forcibly on blank papers as well as format of Income Tax Department. They also took away three mobile sets and for that a request was made to Additional Director, Income Tax Department but they did not even consider the documents whatever was produced before them during conduction of raid. A news was also published in local newspaper regarding raid and recovery/acquisition of property amassed and on account thereof they are facing threatening of demand/ransom from goons. 3. The aforesaid complaint was forwarded to the P.S. concerned for registration and investigation of the case and on account thereof there happens to be origin of Jakkanpur P.S. Case No. 146/2010. 4. It has been submitted on behalf of the petitioners that from plain reading of the narration of the complaint petition, it is evident that the petitioners are being maliciously prosecuted in 3. The aforesaid complaint was forwarded to the P.S. concerned for registration and investigation of the case and on account thereof there happens to be origin of Jakkanpur P.S. Case No. 146/2010. 4. It has been submitted on behalf of the petitioners that from plain reading of the narration of the complaint petition, it is evident that the petitioners are being maliciously prosecuted in the background of the fact that in due discharge of duty when they conducted raid in accordance with Section 132(1) of the Income Tax Act after getting a confidential information regarding concealment of Tax and during course thereof, the same was found in huge quantity. Apart from recovery of cash, illegal acquisition and investment of huge amount which was not properly accounted for and for that no return/statement was filed at an earlier occasion digesting huge tax amount was unearthed. They had voluntarily confessed during course of interrogation as provided under I.T. Act. Just to erase those documents which are legally recognizable as per I.T. Act, instant malicious prosecution has been attracted only to pressurize upon the petitioners to forbid from taking proper action in accordance with law as well as to realize the tax amount/penalty by way of proper assessment of income/concealment. So submitted that the instant prosecution happens to be bad in law. Further been submitted that petitioners are high ups of Income Tax Department coming from Indian Revenue service and such flimsy actions are not expected at their hand. 5. In spite of having notice properly served upon Respondent No.2, he chose not to represent himself. However, State has been heard. 6. The learned Additional P.P has fairly submitted that Court should not become tool in the hands of unscrupulous litigants to satisfy their personal grudge and vendetta. None of the allegation is expected at the hands of the petitioners who are high-ups of Income Tax Department and that happens to be reason behind that at crucial juncture, there happens to be vague allegation in omnibus nature. 7. How far the Courts should involve itself in taking into account as well as entertaining the prayer of the petitioner when a case happens to be under investigation. The same has been taken into consideration in a decision reported in 2009 (10) SCC 488. The Hon’ble Apex Court had occasion to deal with the relevant judicial pronouncement on this score. However, under its para-2 it has been observed as such:- 2. It is well settled and this Court time and again reiterated that the police authorities have the statutory right and duty to investigate into a cognizable offence under the scheme of Code of Criminal Procedure (for short “the Code”). This Court, on more than one occasion, decried uncalled for interference by the courts into the domain of investigation of crimes by police in discharge of their statutory functions. The principle has been succinctly stated way back in King Emperor v. Khwaja Nazir Ahmad and the same has been repeatedly quoted with respect and approval. 8. The cause for interference has also been traced out in a leading decision i.e.,AIR 1992 SC 604 State of Hariyana & Ors. Versus Bhajan Lal & Ors.The Hon’ble Apex Court has identified following categories including others wherein prosecution can be quashed and those are :- “(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. Versus Bhajan Lal & Ors.The Hon’ble Apex Court has identified following categories including others wherein prosecution can be quashed and those are :- “(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroveretd allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, on investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach ajustconclusionthatthereis sufficient grounds for proceedings against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 9. The Hon’ble Apex Court while identifying the above referred criteria had reason to believe that there should not be malicious and vexatious prosecution and whenever it be, it should not be allowed to proceed. 10. Taking into account the aforesaid event as well as the legal proposition when the narration of the complaint petition is gone through, it gives a clear-cut impression with regard to institution of the case in retaliation as Respondent No.2/complainant became very much aggrieved on account of raid conducted by the Income Tax Department of which petitioners were leading the raiding team. 11. Not only this, apart from presence of Section 197 of the Cr.P.C which forbids institution of case unless and until there happens to be sanction when the acts so alleged happens to be inter-related/connected when due discharge of his official duty, Section 293 of the Income Tax also shields its officials. For better appreciation Section 293 is incorporated herewith:- “Section 293:--. No suit shall be brought in any civil court to set aside or modify any [proceeding taken or] order made under this Act; and no prosecution, suit or other proceeding shall lie against [the Government or] any officer of the Government for anything in good faith done or intended to be done under this Act.” 12. Thus, in the background of aforesaid analogy, instant prosecution appears to be unwarranted because of the fact that the occurrence so alleged apart from suffering from vagueness is inter-linked with due discharge of official duty in such a way that even if accepting for a moment, happens to be inseparable. As such, prosecution happens to be barred and non maintainable. Accordingly, FIR of Jakkanpur P.S. Case No. 246/2010 is hereby quashed. Consequent thereupon, petition is allowed. (Aditya Kumar Trivedi, J)