The Applicant-Keshav Lal, Feeling Aggrieved By The Impugnedsummoning Order Dated 27.02.2024 Passed By Learned Ixth Additionalsessions Judge, Lucknow In Criminal v. In Brief, The Facts Of This Case Are That A Search And Seizure Under

[1] Neutral Citation No. - 2024:AHC-LKO:56017 RESERVED ON 24.5.2024DELIVERED ON 14.8.2024 Court No. - 14 Case :- APPLICATION U/S 482 No. - 4782 of 2024 Applicant :- Keshav LalOpposite Party :- Union Of India Thru. Gaurav Garg Deputy Commissioner Of Income Tax And AnotherCounsel for Applicant :- Rajat Gangwar,Ashmita SinghCounsel for Opposite Party :- Kushagra Dikshit Hon'ble Karunesh Singh Pawar,J. 1.Heard Shri Rahul Agrawal, learned Counsel for the applicantand Shri Nirav Chitravanshi, learned Counsel for the Union of India. 2.The applicant-Keshav Lal, feeling aggrieved by the impugnedsummoning order dated 27.02.2024 passed by learned IXth AdditionalSessions Judge, Lucknow in Criminal Complaint Case No.276 of2024, Union of India vs. Keshav Lal, under Section 53 and 3 of theProhibition of Benami Property Transaction Act, 1988 as amendednow and known as The Benami Transaction (Prohibition) AmendmentAct, 2016 and the complaint dated 27.02.2024 filed by therespondents and entire proceedings of the Criminal Complaint Case,has filed the present application. 3.In brief, the facts of this case are that a search and seizure under Section 132 of the Income Tax Act, 1861 was conducted in the case ofthe applicant and his wife Indu Srivastava on 19.04.2017. Duringsearch, the wife of the applicant was found in the possession of cash [2] amounting to Rs. 10,74,91,000/- (Rupees Ten Crores Seventy FourLakhs and Ninety One Thousand Only). Thereafter the matter wasreferred to the Assessing Officer to initiate proceedings against theapplicant under the Prohibition of Benami Property Transaction Act,1988 (hereinafter referred to as PBPT Act). 4.Acting upon the assumption that the cash amounting to Rs.10,74,91,000/- was the beneficial property of the applicant, whoaccumulated cash out of illegal gratification by misuse of officialpossession, it was attached under Section 24(4) of the PBPT Act on25.07.2018 by the Initiating Officer and the said cash was treated tobe the Benami property. 5.A reference was filed before the Adjudicatory Authority underSection 24(5) of the PBPT Act, which upheld the provisionalattachment order dated 28.08.2019. The order dated 28.08.2019 waschallenged in Appeal by the applicant bearing No. PBPT/991/2019,Indu Srivastava & Keshav Lal vs. Shri Aravind Trivedi, InitiatingOfficer before the learned Appellate Tribunal under PBPT Act, NewDelhi, which is pending. In the meanwhile, a show cause notice dated19.11.2019 was initially issued to the applicant seeking hisexplanation, vide proceedings under Section 53 readwith Section 55of the PBPT Act, as to why prosecution may not be initiated, whichnotice was duly replied by the applicant. In the meantime, InterimBoard of Settlement VII, Chennai passed an order dated 15.12.2023treating the seized subject cash as income of the wife of the applicant and assessed as such, however, the Principal Director of Income Tax(Investigation) U.P. (West) & Uttarakhand issued sanction order dated30.01.2024 in the most mechanical and perverse manner on the basisof aforesaid sanction order dated 30.01.2024. The impugnedcomplaint dated 27.02.2024 has been filed against the applicant. and assessed as such, however, the Principal Director of Income Tax(Investigation) U.P. (West) & Uttarakhand issued sanction order dated30.01.2024 in the most mechanical and perverse manner on the basisof aforesaid sanction order dated 30.01.2024. The impugnedcomplaint dated 27.02.2024 has been filed against the applicant. 6.Learned counsel for the applicant submits that the impugnedsummoning order dated 27.02.2024 is perverse and suffers from totalnon-application of mind. It is unseasoned and cryptic order. It issubmitted that the proceedings under PBPT Act, which were initiatedagainst the applicant solely on the basis of seizure of subject cashduring income tax search against the wife of the applicant, could nothave been initiated against the applicant in view of order dated15.12.2023 passed by the Interim Board of Settlement under theprovisions of Section 245 of the Income tax Act, 1961 as the cash hasalready been treated as income of the wife of the applicant and not theincome of her husband, the applicant before this Court. It is submittedthat the applicant is not the beneficial owner of the said cash. It isalso submitted that the fact that the order dated 15.12.2023 was passedby the Interim Board of Settlement has been concealed by therespondents although they were aware about the factum of passing ofthe said order. He further submits that Section 53 of the PBPT Actcan be initiated where alleged transaction is either a benamitransaction pertaining to a benami property or otherwise. It issubmitted that the subject cash of Rs.10,74,91,000/- is not a benami [4] property so as to invoke PBPT Act and prerequisite of Section 53 ofthe PBPT Act are not satisfied. 7.Learned counsel for the applicant, in support of his contentions,has relied upon the judgement of Hon'ble Supreme Court in the caseof Lalankumar Singh and Others vs. State of Maharashtrareported in 2022 SCC Online SC 1383; Pepsi Foods Ltd. v.Judicial Magistrate reported in (1998) 5 SCC 749 and MehmoodUL Rehman v. Khazir Mohammad Tunda and Others reported in(2015) 12 SCC 420. 8. Per contra, learned counsel for the opposite parties has opposedthe application and submitted that the impugned summoning order hasrightly been passed after considering the relevant provisions of thePBPT Act. He asserts that the seized amount is a benami property. Nointerference is required. He has drawn attention of this Court towardsSection 67 of the PBPT Act shall have an overriding effect. 9.Perused the record. 10.Hon'ble Supreme Court of India in the case of LalankumarSingh (supra) has specifically held in paragraph 38 that the order ofissuance of process is not an empty formality. The Magistrate isrequired to apply his mind as to whether sufficient ground forproceeding exists in the case or not. Paragraph 38 of LalankumarSingh (supra) is being quoted hereunder:- "38. The order of issuance of process is not an emptyformality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists inthe case or not. The formation of such an opinion isrequired to be stated in the order itself. The order isliable to be set aside if no reasons are given therein whilecoming to the conclusion that there is a prima facie caseagainst the accused. No doubt, that the order need notcontain detailed reasons. A reference in this respectcould be made to the judgment of this Court in the caseof Sunil Bharti Mittal v. Central Bureau of Investigation,which reads thus: "38. The order of issuance of process is not an emptyformality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists inthe case or not. The formation of such an opinion isrequired to be stated in the order itself. The order isliable to be set aside if no reasons are given therein whilecoming to the conclusion that there is a prima facie caseagainst the accused. No doubt, that the order need notcontain detailed reasons. A reference in this respectcould be made to the judgment of this Court in the caseof Sunil Bharti Mittal v. Central Bureau of Investigation,which reads thus: "51. On the other hand, Section 204 of the Code dealswith the issue of process, if in the opinion of theMagistrate taking cognizance of an offence, there issufficient ground for proceeding. This section relates tocommencement of a criminal proceeding. If theMagistrate taking cognizance of a case (it may be theMagistrate receiving the complaint or to whom it hasbeen transferred under Section 192), upon aconsideration of the materials before him (i.e. thecomplaint, examination of the complainant and hiswitnesses, if present, or report of inquiry, if any), thinksthat there is a prima facie case for proceeding in respectof an offence, he shall issue process against the accused. 52. A wide discretion has been given as to grant orrefusal of process and it must be judicially exercised. Aperson ought not to be dragged into court merelybecause a complaint has been filed. If a prima facie casehas been made out, the Magistrate ought to issue processand it cannot be refused merely because he thinks that itis unlikely to result in a conviction. 53. However, the words "sufficient ground forproceeding" appearing in Section 204 are of immenseimportance. It is these words which amply suggest thatan opinion is to be formed only after due application ofmind that there is sufficient basis for proceeding againstthe said accused and formation of such an opinion is tobe stated in the order itself. The order is liable to be setaside if no reason is given therein while coming to theconclusion that there is prima facie case against theaccused, though the order need not contain detailedreasons. A fortiori, the order would be bad in law if thereason given turns out to be ex facie incorrect." 11.Hon'ble Supreme Court of India in the case of Pepsi FoodsLtd. (supra) has held that summoning of an accused in a criminalLtd. (supra) has held that summoning of an accused in a criminal a matter of course. Relevant paragraph 28 is reproduced as under:- "28. Summoning of an accused in a criminal case is aserious matter. Criminal law cannot be set into motion asa matter of course. It is not that the complainant has tobring only two witnesses to support his allegations in thecomplaint to have the criminal law set into motion. Theorder of the Magistrate summoning the accused mustreflect that he has applied his mind to the facts of thecase and the law applicable thereto. He has to examinethe nature of allegations made in the complaint and theevidence both oral and documentary in support thereofand would that be sufficient for the complainant tosucceed in bringing charge home to the accused. It is notthat the Magistrate is a silent spectator at the time ofrecording of preliminary evidence before summoning ofthe accused. The Magistrate has to carefully scrutinisethe evidence brought on record and may even himself putquestions to the complainant and his witnesses to elicitanswers to find out the truthfulness of the allegations orotherwise and then examine if any offence is prima faciecommitted by all or any of the accused." 12.Likewise, in the case of Mehmood UL Rehman (supra)Hon'ble Supreme Court has held that while issuing process to takejudicial notice of certain facts which constitute offence, there has to bedefinite application of mind as to whether allegation in the complaintwould constitute violation of law so as to call a person to appearbefore the criminal court. Relevant paragraph 20 is reproduced asunder:- "20. The extensive reference to the case law would clearly show thatcognizance of an offence on complaint is taken for the purpose ofissuing process to the accused. Since it is a process of taking judicialnotice of certain facts which constitute an offence, there has to beapplication of mind as to whether the allegations in the complaint,when considered along with the statements recorded or the inquiryconducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanicalprocess or matter of course. As held by this Court inPepsi Foods Ltd.[Pepsi Foods Ltd. v.Judicial Magistrate, (1998) 5 SCC 749 : 1998SCC (Cri) 1400] to set in motion the process of criminal law againsta person is a serious matter." 13.Having gone through the impugned summoning order thisCourt finds that learned court below has simply summarized thecontents of the complaint, fact that sanction order was passed and thecourt had jurisdiction to entertain the matter and thereafter withoutrecording any reason or without examining the nature of allegationmade in the complaint the evidence regarding truthfulness of theallegation or any reason whatsoever as to why the cognizance is beingtaken and the accused is summoned has straightaway passed thecognizance and summoning order, even prima facie satisfaction orreasons for taking cognizance or proceedings against the petitionerhas not been recorded while passing the impugned order dated27.2.2024, thus, the impugned summoning order dated 27.2.2024 iscontrary to the law laid down by Hon'ble Supreme Court of India inthe cases of Lalankumar Singh, Pepsi Foods Ltd. and Mehmood ULRehman (supra). 14.Considering the above, the application is disposed of. The impugned summoning order dated 27.02.2024 passed bylearned IXth Additional Sessions Judge, Lucknow in CriminalComplaint Case No.276 of 2024, Union of India vs. Keshav Lal, is setaside. The matter is remanded back to the learned court below to passa fresh speaking and reasoned order in accordance with law afterproviding opportunity of hearing to the parties, within a period of 60days' from the date of receipt of a certified copy of this order. Order Date :- 14.8.2024Madhu