TMI Blog2016 (4) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been saved under Section 94 of the VAT Act and thus the Police Authorities stand divested of the powers to investigate offences which constitute an offence under the VAT Act as well as the IPC. The said argument cannot be countenanced in absence of any notification having been published under Section 51(3)(i) of the Bihar Finance Act, 1981 conferring the Bureau of Investigation with the power of an Officer-in-Charge of a Police Station. The only notification being Government Order No. 2775 dated 20.04.1983, constituting the Bureau of Investigation, also does not support the argument of the petitioners. The claim of the petitioners that the Bureau of Investigation was vested with the powers of the Officer-in-Charge of the Police Station does not stand substantiated in absence of any specific notification issued by the State Government in exercise of its powers as provided under section 51(3)(i) of the Bihar Finance Act, 1981 or under Section 86(2)(a) of the VAT Act. The powers that have been vested with the Bureau of Investigation is the power to investigate offences as provided under Section 49 of the Bihar Finance Act, 1981 and the corresponding Section 81 of the VAT Act b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under any other statute. It is thus evident as a day of light that in absence of a power of an Officer-in-Charge of a Police Station having been vested with the Bureau of Investigation or the designated officer under Section 86(2)(a) and Section 83(2) of the VAT Act, respectively, it is not open to the petitioners to allege lack of jurisdiction in the police to investigate the offence. A mere fact that VAT Act speaks of investigation by the Bureau of Investigation or an officer as designated under Section 83 of the VAT Act and that it does not refer to any investigation by the Police would thus oust the jurisdiction of Police is also not an argument that would pass the muster of the test of legality. Thus the institution of the FIR cannot be urged to be an abuse of the judicial process "Generalia specialibus non-derogant", which means that when there is a conflict between a general and a special provision, the latter shall prevail has been resorted to - Whether the VAT Act being the special Act, having made provisions for institution of offences under the VAT Act, would override and divest the police authority to institute and investigate cases under the IPC - Held that:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) to be more precise for violation of Section 56(4) of the VAT Act read with various provisions of Indian Penal Code (hereinafter referred to as IPC ). 2. The common sliver that runs through the various applications under consideration is that the petitioners are being accused of violation of Section 56(4) of the VAT Act for reason that they were found to be either lacking in possession of Form D-IX ( forms used for transportation of goods into the State) or Form X-VII (forms used for movement of goods through the State to another State) or they were found to be in possession of Form D-IX or D-VII which were deficient in details or were alleged to have been forged or interpolated with details and it was alleged that goods accompanying the said Forms D-IX were being transported with intention to cheat the State Government of the revenue that would have accrued to it on account of proper documentation of the goods accompanying Form D-IX. 3. The main thrust of the argument of the petitioners revolve around the jurisdiction of the Taxing Authority to institute a First Information Report. The argument of the petitioners raise the following issues for consideration of the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act would override the general Act- generalia specialibus non-derogant‟. It is urged on behalf of the petitioners that a provision similar to section 86 of the VAT Act was to be found in Section 51 of its predecessor Act being Bihar Finance Act, 1981 (Bihar Act 5 of 1981) and wherein similar power had been vested with the Bureau of Investigation where too the official of the Bureau of Investigation could have been vested with the power of an Officer-in-Charge of a Police Station. Based on the con-joint reading of Section 86 of the VAT Act and Section 51 of the repealed Bihar Finance Act, 1981 it has been urged, on behalf of the petitioners, that the power of the police to institute and investigate cases under the provisions of the VAT Act as also under corresponding provisions of the IPC stands ousted. 7. The petitioners have urged that the VAT Act and the Bihar Finance Act, 1981 being special Act, issues came to be agitated before this court as to whether in view of the special Act the police have the power to institute and investigate cases under the IPC. The petitioners have agitated, relying on several judgments of this Court, that for violation of provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and that the provisions under the relevant Statute also do not prohibit institution and carrying out of investigation by the police under relevant provision of the IPC. In support of his contention, learned counsel for the State has also placed reliance on an unreported judgment of Nagpur Bench of the Bombay High Court passed in Criminal W. P. No. 396 of 2012 [G. S. Oils Ltd through Its M. D. Shri Manoj Kumar Shrigovind Agrawal and another vs. The State of Maharashtra through PSO Wani, Dist. Yavatmal and others]. 12. In view of the aforesaid controversy it would be relevant to take note of various provisions of the VAT Act and the provisions of the repealed Bihar Finance Act, 1981 :- VAT Act, 2005 Section 82 - Cognizance of offences .- (1) Save as provided in section 81, the punishments inflicted under the said section shall be without prejudice to any penalty which may be imposed under the provisions of this Act. (2) No court shall take cognizance of any offence under this Act except with the previous sanction of the Commissioner or any officer specially empowered in this behalf and no court inferior to that of a Magistrate of the first class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Official Gazette, constitute a Bureau of Investigation and it shall consist of such personnel and such number of officers and such hierarchy of supervision and control as may be specified by the State Government in the said order: [Provided that if authorities appointed under sub-section (1) of Section 9 are specified as such it shall without prejudice to the powers under sub-section (1) of Section 9, exercise the powers of an authority under Sections 31, 32, 33, 34 and 35 for carrying out the purpose of this part.] (2) An officer of the Bureau of Investigation shall without prejudice to any powers vested in it under sub-section (3) exercise the powers of an authority appointed under Section 9 for the purposes of Sections 33 and 35 of this part. (3) (i) The State Government may, by an order published in the Official Gazette, vest an officer of the Bureau of Investigation with the powers of an officer incharge of a police-station under the Code of Criminal Procedure, 1973 and with such other powers under different Acts, as it may consider necessary. (ii) The Commissioner may, by an order published in the Official Gazette, authorize an officer of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under sub-section (4) of Section 51 of the Bihar Finance Act, 1981 the State Government by Order No. 2775 dated 20.04.1983, had set up the Bureau of Investigation. In spite of all the inquiries, no notification had been brought to the notice of the court that had been published in the Official Gazette in terms of section 3(i) of Section 51 of the Bihar Finance Act, 1981, whereby the State Government had vested an officer of the Bureau of investigation with the powers of an Officer-in-Charge of a Police Station under the Code of Criminal Procedure, 1973. 17. The Bihar Finance Act, 1981 stood repealed upon promulgation of Bihar Value Added Tax Act, 2005 on 23.06.2005. Section 94 of the VAT Act provides for repeal and savings clause. To quote:- 94. Repeal and savings. - (1) The Bihar Finance Act, (Bihar Act, 5 of 1981) (hereinafter referred to as the repealed Act ) is hereby repealed from the date of commencement of this Act. (2) The repeal shall not affect,- (a) . (b) . (c) . 3. All rules, orders and appointments made, notifications published, certificates granted, powers conferred and other things done under the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been conferred powers of an Officer-in-Charge of a Police Station for investigation of a cognizable offence as has been brought under CrPC. Further, no notification as published under Section 3 (i) of the Bihar Finance Act, 1981 (corresponding to Section 86 (2) (a) of the VAT Act) has been brought to the notice of the court nor has it come to the notice of the court - upon its own inquiry. 23. It has been argued on the part of the petitioners that in view of section 51 of the Bihar Finance Act, 1981 read with Notifications and the Government Orders published thereunder, the Bureau of Investigation has been conferred with the power of the Officer-in-Charge of the Police Station for investigation of cognizable offence and that the said powers have been saved under Section 94 of the VAT Act and thus the Police Authorities stand divested of the powers to investigate offences which constitute an offence under the VAT Act as well as the IPC. The said argument cannot be countenanced in absence of any notification having been published under Section 51(3)(i) of the Bihar Finance Act, 1981 conferring the Bureau of Investigation with the power of an Officer-in-Charge of a Police Station ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stration of the First Information Reports was bad in law and thus the same needs to be quashed. 29. As noted above the petitioners have relied upon some of the previously decided cases as a precedent to fortify the said argument and of the prominence is the judgment passed in the case of Hindustan Lever Limited (supra) and as approved by a Division Bench passed in Om Prakash Sah (supra). A further reference has been made to the case of M/s Torque Pharmaceuticals (supra). There appears to be a basic fallacy in reliance of the petitioners upon these set of judgments to argue that VAT Act would oust the jurisdiction of the police to institute and investigate an FIR as the VAT Act is a special Act and as the same is a complete Code in itself to institute and investigate a case relating to infraction of its provisions - as such no First Information Report can be instituted for the offences under the IPC and vest power in the police to investigate offences. To substantiate the argument that VAT Act is a complete Code with regard to investigation of the offence, it has been argued that the Bureau of Investigation has been vested with powers of an Officer-in-Charge of Police Station - w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. Section 5. Saving.- Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. 31. It is apparent from section 4 of the CrPC that the provisions of the CrPC shall be applicable whenever an offence under the IPC or under any other law is committed and the CrPC shall regulate the mode of investigation, enquiry or trial. A conjoint effect of Section 4(2) read with Section 5 of CrPC is that all offences, whether under IPC or under any other law, have to be investigated, inquired into, tried and otherwise dealt with according to the provisions of CrPC, unless there be an enactment regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. In which case an enactment will prevail over those of CrPC unless there is specific provision to the contrary in CrPC. 32. The jurisdiction under Section 4 of CrPC is comprehensive and to the extent that till no valid machinery is set up un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions in the Code of Criminal Procedure, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. It would follow as a necessary corollary that unless in any statute other than the Code of Criminal Procedure which prescribes an offence and simultaneously specifies the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences, the provisions of the Code of Criminal Procedure shall apply in respect of such offences and they shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure. 35. In A. R. Antulay versus Ramdas Srinivas Nayak reported in AIR 1984 SC 718, a Constitution Bench of the Supreme Court while examining the same question with regard to applicability of Section 4 with reference to the Prevention of Corruption Act has laid down the law thus : in the absence of a specific provision made in the Statute indicating that offences will have to be investigated, inquired into, tried and otherwise dealt with according to that statute, the same w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions except the one in H. N. Rishbud v. State of Delhi, 1955 (1) SCR 1150 : (AIR 1955 SC 196). In that decision, it has been held that: under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the commission of various persons (including the accused) and the reduction of their statement into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173. 38. The VAT Act is silent with regard to the procedure that has to be followed by the Bureau of Investigation while making any investigation with regard to any of the offence and as such it cannot be emphasized that the jurisdiction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct is the only competent authority to investigate in respect of any offence under the said Act which means no other authority can carry out investigation or hold inquiry into any case of alleged or suspected evasion of tax as well as malpractices connected therewith. It also appears that under the provisions of Section 7(3) no complaint is required to be presented before any authority as has been done in the instant case but only a report is required to be submitted before the Commissioner. Section 7(3) of the West Bengal Sales Tax Act, 1994 clearly says that the Bureau may, on information or of its own motion, or when the State Government or the Commissioner so directs, carry out investigation or hold inquiry into any case of alleged or suspected evasion of tax as well as malpractices connected therewith and send a report in respect thereof to the Commissioner. In the instant case, as it appears, the Bureau of Investigation on its own accord and information carried out investigation but instead of sending a report to the Commissioner on the basis of the said investigation, sent a complaint before the Deputy Superintendent of Police, Bureau of Investigation against clear provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation or hold enquiry into any case or alleged or suspected case of evasion of tax or malpractice created thereof and send a report of it to the Commissioner. A reading of Section 7 makes it clear that creation of a Bureau of Investigation is for the purpose of discharging the function envisaged in sub-section (3) which, of course, includes investigation also. But there is nothing in Section 7 that such investigation can be carried on only by the Bureau and not any other investigating agency. It is open to the Bureau to get the assistance of any other legally constituted investigating agency for effectively inquiring into all the ramifications of the offence. As in this case if offences falling under the Indian Penal Code or any other enactment are also detected during the course of investigation conducted by the Bureau there is no inhibition to pass over the investigation to the regular police. 18. If the view of the learned single Judge gets approval it would lead to startling consequences. The consequences of such an interpretation would be that if the person who commits the offence under Section 88 of the Act also commits other serious offences falling under Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot specificated it is otiose. There is no such sequatur. The silence of a statute has no exclusionary effect except where it flows from necessary implication . . 43. A mere fact that VAT Act speaks of investigation by the Bureau of Investigation or an officer as designated under Section 83 of the VAT Act and that it does not refer to any investigation by the Police would thus oust the jurisdiction of Police is also not an argument that would pass the muster of the test of legality. 44. Thus it cannot but be stated that the reliance of the State upon an unreported judgment of Nagapur Bench of Bombay High Court passed in the case of G. S. Oils Ltd (supra) is appropriate. The Division Bench has relied upon the judgment passed in the case of Narayan K. Patodia (supra). An attempt to distinguish the case of Narayan K. Patodia (supra) on the ground that the said judgment had been passed under the facts particular to that case and specifically on the ground that the West Bengal Act provided that the provisions under the Sales Tax Act was supplemental to any other penalty provided by any law for the time being . The said argument was repelled stating thus: 15. The sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers therein had filed writ application for quashing the order passed by the District Magistrate by which he had directed the Licensee of the Regent Cinema to pay a fine of ₹ 1000/- under Section 7(1) of the Bihar Cinema (Regulation) Act, 1954. The argument advanced by the petitioners was that since no provision had been prescribed under the Bihar Cinema (Regulation) Act, 1954 for the trial of the offences under the Act, the provision for trial as provided under the CrPC would apply for the trial of the offences under the Bihar Cinema (Regulation) Act, 1954 and in that view of the matter District Magistrate was not a competent authority to hold trial and impose fine on the petitioner and accordingly the order passed by him was without jurisdiction. The State tried to justify the impugned order on the ground that the District Magistrate was the competent authority to impose fine under Section 7(1) of the Bihar Cinema (Regulation) Act. After the examining provision of the Act, it was held by a Division Bench of this Court that as no provision had been made for the trial of offences under the Bihar Cinema (Regulation) Act, 1954 the offences will be tried by the courts as mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of various judgments would show that to invoke the said doctrine one will have to not only examine the subject matter involved in the two statutes/provisions/legal instruments but also if the nature of the Statute is comprehensive and was intended to be a complete code in itself with regard to the subject-matter. Further, one also will have to see if the special Statute or the provision has been introduced with a specific aim to alleviate a mischief that was pre-existing and only then the said doctrine can be invoked. A review of some of the judgments passed by the Apex Court is called for at this juncture. 50. In the case of Commissioner of Income-Tax, Patiala and Ors. vs. M/s. Shahzada Nand and Sons and others reported in AIR 1966 SC 1342 their lordships have dealt with the doctrine of generalia specialibus non-derogant‟ thus: 8. To this may be added a rider : in a case of reasonable doubt, the construction most beneficial to the subject is to be adopted. But even so, the fundamental rule of construction is the same for all statutes, whether fiscal or otherwise. The underlying principle is that the meaning and intention of a statute must be collected fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e discussion made with regard to the said doctrine generalia specialibus non-derogant‟ in the case of Binani Cement (supra) thus : 31. At the outset, we would observe that the High Court has erred in reaching its conclusion by holding that : (a) the respondent Company would fall into all the three categories of industries referred to in the Scheme, that is to say it is a new unit which is a large-scale unit‟, a prestigious new unit and also a very prestigious unit ; (b) the classification of a new unit, viz. small scale, medium scale and large scale under Item 1-E on the basis of scale of investment does not denude a new industrial unit of any type of the special status of pioneer , prestigious and very prestigious unit under Items 4 and 5 to also exclude operation of General entry; and (c) the special entry would not exclude the applicability of general entry in context of the Scheme so as to exclude the operation of items 4, 6 and 7. Thereby implying that though there exists an overlap between the general and special provision, the general provision would also be sustained and the two would co-exist. 32. Before we deal with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt with by the special law, is impliedly repealed. This principle finds its origins in the latin maxim of generalia specialibus non derogant, i.e., general law yields to special law should they operate in the same field on same subject. (Vepa P. Sarathi, Interpretation of Statutes, 5th Ed., Eastern Book Company; N. S. Bindra‟s Interpretation of Statutes, 8th Ed., The Law Book Company; Craies on Statute Law, S.G.G. Edkar, 7th Ed., Sweet Maxwell; Justice G.P. Singh, Principles of Statutory Interpretation, 13th Ed., Lexis Nexis; Craies on Legislation, Daniel Greenberg, 9th Ed., Thomson Sweet Maxwell, Maxwell on Interpretation of Statutes, 12th Ed., Lexis Nexis). 35. Generally, the principle has found vast application in cases of there being two statutes: general or specific with the latter treating the common subject -matter more specifically or minutely than the former. Corpus Juris Secundum, 82 C.J.S. Statutes 482 states that when construing a general and a specific statute pertaining to the same topic, it is necessary to consider the statutes as consistent with one another and such statutes therefore should be harmonized, if possible, with the objective of giving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication of principle of harmonious construction has been explained by Kasliwal J. while expressing his partial dissent to the majority judgment in St. Stephen‟s College v. University of Delhi, (1992) 1 SCC 558 as follows: 140. The golden rule of interpretation is that words should be read in the ordinary, natural and grammatical meaning and the principle of harmonious construction merely applies the rule that where there is a general provision of law dealing with a subject, and a special provision dealing with the same subject, the special prevails over the general. If it is not constructed in that way the result would be that the special provision would be wholly defeated. The House of Lords observed in Warburton v. Loveland (1824-34) All ER Rep 589(HL) as under: No rule of construction can require that, when the words of one part of statute convey a clear meaning it shall be necessary to introduce another part of statute which speaks with less perspicuity, and of which the words may be capable of such construction, as by possibility to diminish the efficacy of the[ first part]‟. [(Anandji Haridas and Co. (P) Ltd. v. S.P. Kasture, (1968) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t provisions of the same statute in numerous cases some of which only need be mentioned: De Winton v. Brecon Corpn., (1859) 26 Beav 533, Churchill v. Crease, (1828) 5 Bing 177, United States v. Chase 34 L ED 117 and Carroll v. Greenwich Ins. Co. 50 L Ed 246. 10. Applying this rule of construction that in cases of conflict between a specific provision and a general provision the specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by the special provision, we must hold that clause 5(a) has no application in a case where the special provisions of clause 23 are applicable. 40. Lord Cooke of Thorndon pointed out, however, in Effort Shipping Co Ltd. v. Linden Management, SA [1998] AC 605 that the maxim is not a technical rule peculiar to English statutory interpretation, rather it represents simple common sense and ordinary usage . Bennion, Statutory Interpretation, 5th ed. (2008), p. 1155 states that it is based, like other linguistic canons of construction, on the rules of logic, grammar, syntax and punctuation, and the use of language as a medium of communication generally. As Lord Wilberforc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a conflict between a general and a special provision, the latter shall prevail. The said principle has been stated in Craies on Statute Law, 5th Edn., at p. 205, thus: The rule is, that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.‟ When the words of a section are clear, but its scope is sought to be curtailed by construction, the approach suggested by Lord Coke in Heydon case, (1584) 3 Co. Rep 7a, yield better results: To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope, and object of the whole Act: to consider, according to Lord Coke: (1) What was the law before the Act was passed; (2) What was the mischief or defect for which the law had not provided; (3) What remedy Parliament has appointed; and (4) The reason of the remedy.‟ (emphasis supplied) 43. In LIC v. D.J. Bahadur, (1981) 1 SCC 315 this Court was con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a particular subject. When a general Act is subsequently passed, it is logical to presume that Parliament has not repealed or modified the former special Act unless it appears that the special Act again received consideration from Parliament. 53. In LIC v. D.J. Bahadur (1981) 1 SCC 315 Krishna Iyer, J. has pointed out : 52. In determining whether a statute is a special or a general one, the focus must be on the principal subject-matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with finer points of law.‟ 45. In U.P. SEB v. Hari Shankar Jain, (1978) 4 SCC 16, this Court has concluded that if Section 79(c) of the Electricity Supply Act generally provides for the making of regulations providing for the conditions of service of the employees of the Board, it can only be regarded as a general provision which must yield to the special provisions of the Industrial Employment (Standing Orders) Act in respect of matters covered by the latter Act, and observed that: (SCC p. 27, para 9) 9. The reason for the rule that a genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e no longer good law in view of the proposition of law as settled by the Hon‟ble Supreme Court in a later judgment in the case of Narayan K. Patodia (supra). 53. In view of the aforesaid discussions, the argument for quashing the First Information Reports on account of lack of jurisdiction in the police authorities to investigate an offence - which is punishable both under the VAT Act and under the IPC - as the special Act (VAT Act) ousts the jurisdiction of CrPC does not commend to this Court. The reason is simple, there is neither any conflict between the provisions of two statutes nor does there appears to be any attempt to cover the filed of CrPC with regard to investigation. In fact, to the contrary, where there was even an avenue available to cover the said field of grant of police powers to the authorities/ Bureau of Investigation - under the VAT Act has voluntarily and consciously been not taken by the State Government. 54. Thus the institution of the FIR cannot be urged to be an abuse of the judicial process. 55. In view of the aforesaid, the writ applications fail on all grounds. 56. All the writ applications are dismissed, accordingly. - - Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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