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2021 (3) TMI 853 - HC - GSTJurisdiction - power of respondent No.2, who was an ETO, to set the criminal law in motion without the previous sanction/permission of the Commissioner of Central Government as provided for under Section 132(6) of the CGST Act - whether lodging of FIR amounts to prosecution or not - procuring bogus purchase invoices to avail ineligible credit - HELD THAT:- Since the inherent powers vested under Section 482 Cr.P.C. are extremely wide and undefined, a great deal of circumspection needs to be exercised. In the case in hand, as also stated by the learned counsel for the petitioner, investigation is still underway and final report under Section 173 Cr.P.C. has not yet been presented by the investigating agency. Therefore, this Court would not be justified in embarking upon the truthfulness or falsehood of the allegations levelled in the complaint. Moreover, a perusal of the FIR in question does prima facie disclose the commission of offences alleged against the petitioner. Needless to add the correctness or otherwise of the allegations would be gone into by the trial Court as and when the evidence is adduced by both the parties. No doubt, Section 4(2) Cr.P.C. does stipulate that if a special procedure is prescribed under a special enactment then the procedure would have to be followed as per the enactment and not under the Code and perusal of Section 132(6) of the CGST Act, also makes it abundantly clear and leaves no manner of doubt that a person under this section can be prosecuted for an offence only with the previous sanction of the Commissioner. However, in the case in hand the 'prosecution' of the petitioner has not even been initiated. Prosecution of a person or an accused commences only when the Magistrate or Court concerned takes cognizance of the same. In other words, prosecution means the initiation or commencement of the criminal proceedings when formal charge-sheet is presented before a Court of law. Coming to the instant case, as already admitted by the learned counsel for the petitioner, investigation is still underway and chargesheet/ final report under Section 173 Cr.P.C. has not yet been presented before the Court concerned. The complaint filed by respondent No.2 cannot be said to be beyond his jurisdiction because the previous sanction of the Commissioner as provided for under Section 132(6) of CGST Act, would be required only after the conclusion of the investigation and at the stage of presentation of charge-sheet/final report under Section 173 Cr.P.C., when judicial notice of the offence(s) are taken for the first time by a Court of law. Lodging of the FIR does not amount to prosecution and is clearly distinguishable from prosecution. Petition dismissed.
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