TMI Blog2015 (1) TMI 1371X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the learned Sessions Court rendered on 16.01.2015 referred by the petitioner is not under challenge before this Court at this stage and therefore it is not proper for me to make any comment with regard to the observations made by the learned Sessions Court. However, it is of the opinion that in view of the fact that the said cash is required to prove the case against the accused learned Special Public Prosecutor has taken the objection and therefore it cannot be said that the learned Special Public Prosecutor is taking different stand. Thus, the said contention of the petitioner is also required to be discarded. Thus learned Sessions Court has not committed any error much less the error of law, which calls for the interference of this Court by exercising the powers under Article 227 of the Constitution of India. The present petition is, therefore, dismissed. Notice discharged. - Special Criminal Application (Quashing) No. 58 of 2015 - - - Dated:- 20-1-2015 - Mr. Vipul M. Pancholi, J. Mr IH Syed, Advocate With Mr CB Gupta, Advocate for the Applicant. Mr MR Bhatt, Senior Counsel With Mrs Mauna M Bhatt, Mr mitesh r. Amin, Advocate Mr HL Jani, Incharge Public Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 came to be registered with D.C.B. Police Station, Surat against Narayan Sai and others including the present petitioner. After completion of the investigation of the FIR being C.R.I37 of 2013, the D.C.B. Police has filed the chargesheet against the accused persons in the Court of learned Special Judge, Surat, which is registered as Special Case No.1 of 2014. It is the case of the petitioner that accused Narayan Sai preferred an application before the learned Sessions Court at Surat with a view to get certified copies of the documents seized in 42 gunny bags. However, the said application was rejected by the learned Sessions Court observing that the seized documents of 42 bags are not lying with the Sessions Court and the same are lying with the Investigating Officer. The petitioner, therefore, filed Special Criminal Application No.3354 of 2014 before this Court with a prayer to furnish the certified copies of the documents seized by the Investigating Officer in 42 bags. That this Court disposed of the said petition with the observations that if the petitioner would approach the Investigating Officer, it is expected that the same shall be looked into by the Investigating Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax Department, whereby, the Investigating Officer is directed to handover 42 gunny bags, which have been seized during the investigation of the FIR being C.R.I31 of 2013 to the Income Tax Authority. Hence, this petition. [3] Learned advocate Mr. I.H.Syed appearing with learned advocate Mr.C.B.Gupta for the petitioner, has submitted that the learned Court below has committed an error by passing the impugned order whereby the custody of Muddamal of 42 gunny bags has been handed over to the respondent No.1 Income Tax Department. It is submitted by the learned advocate for the petitioner that 42 gunny bags have been seized by the Investigating Officer during the course of the investigation of the FIR being C.R.I31 of 2013. However, the said Muddamal is also important for trial of Special Case No.1 of 2014 arising out of the FIR being C.R.I37 of 2013. It is contended that said 42 gunny bags are the base for registration of the FIR being C.R.I37 of 2013. However, while passing the impugned order, learned trial Court has not referred to the FIR being C.R.I37 of 2013. [3.1] Learned advocate for the petitioner would contend that petitioner has given an application for gettin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution relies upon the same and/or its requirement in the course of trial, in the case arising out of I.C.R.No.37/2014 at the time of hearing of the application of Section 451 CRPC? 2. Whether the impugned judgment is sustainable if the stand of the prosecution about the reliance on the documents and/or its requirement in the course of trial in the case arising out of I CR No.37/2014 has a bearing on the outcome of an application of Section 451 CRPC? 3. Whether the impugned judgment is sustainable in light of a subsequent order/judgment where in the Court dismissed the application of Section 451 filed by the Income Tax denying custody of muddamal of ₹ 8 crores on the ground that the prosecution took a stand that the said muddamal is required for trial? 4. Whether the impugned judgment is sustainable without compliance of section 207 CRPC and during the time when the application under section 377 of Criminal Court Manual seeking certified copies of the document is pending in the Court? 5. Whether a hearing and decision by the Court in the application of section 451 without supplying the documents under section 207 or 377 would amount to a fair hearing? 6. Whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. 771, and more particularly, paragraphs 17 and 21 of the said decision and thereby submitted that even unexhibited documents are required to be supplied to the accused. [3.6] Learned advocate for the petitioner further relied upon the decision of the Hon ble Supreme Court in the case of Rattiram Ors. V. State of Madhya Pradesh, reported in (2012) 4 SCC 516 and submitted that the accused is having a right of fair trial and the fair trial is required to be conducted in such a manner which would totally ostracize the injustice, prejudice, dishonesty and favouritism. He further submitted that once the prejudice is caused to the accused during trial, it occasions in failure of justice. Learned advocate further submitted that objection with regard to noncompliance of the provisions of Section 207 of the Code is required to be taken at the earliest and therefore such contention is taken by the petitioner. [3.7] Learned advocate for the petitioner further relied upon Rules 377 and 378 of the Criminal Court Manual. Rule 377 of the Criminal Court Manual reads as under: Parties to any proceedings may, on application on the prescribed court fee made to the Court having the custod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 132A of the Act, that the said limitation period would start from the date of knowledge and therefore the Income Tax Department is not right in contending that if the custody of the Muddamal articles is not handed over to the Income Tax Department immediately then it would be difficult for them to make scrutiny of the documents and complete the proceedings before 31st March 2015. [3.10] The learned advocate for the petitioner, at the time of hearing of this petition, produced on record the reply given by the petitioner before the learned Sessions Court in Criminal Misc. Application No.1392 of 2014 and pointed out that the contention was taken by him in the said reply that 42 gunny bags are the Muddamal of C.R.No.I37 of 2013 of D.C.B. Police Station and therefore the said Muddamal cannot be handed over to the Income Tax Department. Referring to the said contention, learned advocate for the petitioner submitted that the learned Sessions Court has not dealt with the aforesaid contention of the petitioner and therefore the impugned order passed by the learned Sessions Court may be quashed and set aside and thereby the matter be remanded back to the learned Sessions Court to consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Rattiram (Supra) is also not applicable to the facts and circumstances of the present case as the petitioner is not an accused in C.R.No.I31 of 2013, wherein, during the course of investigation, the Investigating Officer seized 42 gunny bags as the Muddamal from the residence of respondent No.2 herein. Therefore, there is no question of causing any prejudice to the petitioner in the trial arising out of C.R.No.I37 of 2013. [4.2] The learned Senior Counsel further submitted that the application submitted by the petitioner for joining him as a party respondent in the application submitted by the respondent No.1 Income Tax Department, the learned Sessions Court has under the wrong belief joined him as party respondent and therefore merely because the petitioner was joined as respondent in the said proceedings, it cannot be said that the right of the petitioner would be prejudiced if the Muddamal 42 gunny bags are handed over to the Income Tax Department. [4.3] The learned Senior Counsel contended that the petitioner is wrongly relying upon the provisions of Section 207 of the Code and Rule 377 of the Criminal Court Manual. Learned Senior Counsel relied upon the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver the requisitioned assets to the Income Tax Department and upon receipt of the requisitioned assets/documents, the assessment under Section 153A of the Act is required to be commenced and finalized. In the said proceedings adequate and enough opportunity would be granted to the persons affected viz. concerned assessee whose undisclosed income is sought to be assessed. In the event, the petitioner is one of the assessees whose undisclosed income is sought to be assessed under section 153A and analogous provisions of the Act, adequate opportunity will be granted to him and the Income Tax Department will follow the principle of natural justice. Thus, the learned Senior Counsel submitted that no prejudice would be caused to the petitioner. [4.6] The learned Senior Counsel further contended that the petitioner was intentionally delaying the hearing of the application submitted by the Income Tax Department before the learned Sessions Court by filing different applications and petitions. The learned Senior Counsel referred to para 13 of the affidavitinreply filed by the Deputy DIT of Income Tax (Investigation), Unit 3 in this proceeding and submitted that at no point of time the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reby requested that the petition be dismissed. [5] The learned advocate Mr. Mitesh R. Amin appearing on behalf of respondent No.2 has submitted that the 42 gunny bags have been seized from the residence of respondent No.2 by the Investigating Officer during the course of investigation of the FIR being C.R.No.I31 of 2013. Thus, the aforesaid 42 gunny bags are the Muddamal of the FIR being C.R.No.I31 of 2013. It is further submitted by him that the respondent No.2 has filed the pursis at Exh.5 in the application submitted by the respondent No.1 Income Tax Department before the learned Sessions Court, wherein, it was declared by the respondent No.2 before the said Court that he has no objection if the said 42 gunny bags are handed over to the Income Tax Department. The respondent No.2 is taking the same stand before this Court also. Thus, the learned advocate for the respondent No.2 has submitted that this Court may pass appropriate order. [6] The learned Incharge Public Prosecutor Mr. H.L.Jani submitted on behalf of respondent no.3 that learned Sessions Court has not committed any error while passing the impugned order. He has pointed out before this Court that the learned Sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred by the Income Tax Department for getting the custody of cash of ₹ 8.10 crore the learned Special Public Prosecutor has objected the said application and contended that the cash amount is not Muddamal and even if it is considered to be Muddamal then also the custody of the cash cannot be handed over to the Income Tax Department since the said cash is required to prove the case against the accused of C.R.No.I37 of 2013. [7] Heard the learned advocates appearing for the parties. I have gone through the order impugned in this petition and also the documents produced on record and also considered the rival submissions advanced by the learned advocates appearing for the parties. At the outset, it is required to be noted that from the record and the submissions advanced by the learned advocates appearing for the respective parties, it is clear that the petitioner is an accused of an FIR being C.R.No.I37 of 2013 registered with D.C.B. Police Station, Surat for the offences punishable under under Sections 213, 214, 217, 120B of the Indian Penal Code read with Sections 7, 8, 9, 12 and 13(1) of the Prevention of Corruption Act, 1988. It is further clear from the record that pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice under subsection (4)of section 22 of the Indian Incometax Act, 1922, or under subsection (1) of section 142 of this Act was issued to produce, or cause to be produced, any books of account or other documents has omitted or failed to produce, or cause to be produced, such books of account or other documents, as required by such summons or notice and the said books of account or other documents have been taken into custody by any officer or authority under any other law for the time being in force, or (b) any books of account or other documents will be useful for, or relevant to, any proceeding under the Indian Incometax Act, 1922 (11 of 1922), or under this Act and any person to whom a summons or notice as aforesaid has been or might be issued will not, or would not, produce or cause to be produced, such books of account or other documents on the return of such books of account or other documents by any officer or authority by whom or which such books of account or other documents have been taken into custody under any other law for the time being in force, or (c) any assets represent either wholly or partly income or property which has not been, or would not have been, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said application that 42 gunny bags were seized during the course of investigation and Panchnama was prepared by the Investigating Officer. The said bags contained documents, CPU, hard disk, C.D. and other articles involving the sizable investments. The said gunny bags are required by the Income Tax Department for the purpose of thorough and complete investigation as to the source of investments including the investments in real estate and immovable properties under the provisions of the Act. It was further pointed out in the said application that income tax authorities have very wide powers to investigate the source of investments as contained in the documents lying in 42 gunny bags. Therefore, thorough and complete investigation is required to be had in the interest of nation. It was further pointed out in the said application that the income tax authorities are discharging their duty bona fide. Therefore, it was prayed in the said application that necessary orders under Section 451 and 457 of the Code may be passed and thereby the custody of 42 gunny bags containing documents, CPU, hard disk, CD and other articles be handed over to the Income Tax Department for the purpose of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Sessions Court, whereby he declared that he has no objection if the custody of 42 gunny bags is given to the Income Tax Department. From the record, it is further clear that the contentions and submissions advanced on behalf of the learned advocate for the petitioner are properly dealt with by the learned Sessions Court while passing the impugned order and it is not the case of the petitioner in the petition that though the learned advocate appearing before the learned Sessions Court has raised certain contentions, they were not dealt with by the learned Sessions Court and therefore when the learned trial Court has, after appreciating the arguments advanced by the concerned parties, passed the order, it cannot be said that the learned Sessions Court has committed any illegality. [13] Now, in this fact situation it is to be observed that for the first time before this Court the learned advocate for the petitioner has raised certain contentions which are not at all taken by him before the learned Sessions Court. It is true that contentions of law can be raised at any point of time but it is also true that if factual contentions are not raised before the learned Sessions Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in charge of the police station. (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating( (a) The names of the parties; (b) The nature of the information; (c) The names of the persons who appear to be acquainted with the circumstances of the case; (d) Whether any offence appears to have been committed and, if so, by whom; (e) Whether the accused has been arrested; (f) Whether he has been released on his bond and, if so, whether with or without sureties; (g) Whether he has been forwarded in custody under section 170. (h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under section 376, 376A, 376B, 376C [section 376D or section 376E of the Indian Penal Code (45 of 1860) (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any whom the information relating to the commission of the offence was first given. (3) Where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report, FIR, statements recorded under subsection (3) of section 161 of the Code, confessions and statements, if any, recorded under section 164 of the Code and any other documents or relevant extract thereof forwarded to the Magistrate with the police report under subsection (5) of Section 173. Second proviso to Section 207 further provides that if the Magistrate is satisfied that any documents referred to in clause (v) is voluminous, he shall instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court. [16] Further, subsection (5) of Section 173 of the Code provides that the police officer shall forward to the Magistrate along with the report all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation. [17] At this stage, at the cost of repetition, I would like to refer to Rule 377 of the Criminal Court Manual, which reads as under: Parties to any proceedings may, on application on the prescribed court fee made to the Court having the custody of the record, obtain certified copies of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the aforesaid provisions of law. At this stage, for the sake of repetition it is once again observed that the petitioner is not an accused of the FIR being C.R.No.I31 of 2013 registered with Jahangirpura Police Station during the investigation of which the Investigation Officer seized 42 gunny bags from the residence of respondent No.2 herein and therefore the contention raised by the learned advocate for the petitioner that if the copy of the documents lying in the said 42 gunny bags is not given to the petitioner, prejudice would be caused to him, in the opinion of this Court, is misconceived and not required to be accepted. [20] Thus, in view of the facts and circumstances of the case, the decision relied upon by the learned advocate for the petitioner rendered by the Hon ble Apex Court in the case of V. K. Shashikala (Supra) is not applicable because the petitioner is not an accused of the FIR being C.R.No.I31 of 2013. Further, Rules 377 and 378 of the Criminal Court Manual are also required to be read with the provisions of Clause (v) of Section 207, 2nd proviso to Section 207 and subsection (5) of Section 173 of the Code. [21] Now, so far as the contention of the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the subsection shall deliver the books of account, other documents or assets to the requisition officer either forthwith or when such officer or authority is of the opinion that it is no longer necessary to retain the same in his or its custody. 15.Under Section 451 of the Code, the Criminal Court has limited power to make inquiry. However, the Court has no power to go in detail and hence, specific provision is made in the Act under Sec.132A once the proceedings is initiated by the Department. Under Section 132A of the Act, neither the Court nor the Police Authority has the power to release the currency notes. Hence, scope of inquiry under Sec.451 of the Code as also under Sec.132A of the Act is quite different. 16.The intention of the Legislature by incorporating Section 132 of the Act is only to protect the interest of revenue of the State and if authority is satisfied regarding the source of income, it may pass appropriate order to hand over the muddamal to the assessee or any concerned person. When question of huge currency is involved and if proceedings of inquiry under Sec.132A of the Act are initiated, then certainly truth will come before the the Department regardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e important aspect which is required to be noted at this stage is that the respondent No.1 has specifically stated on oath in the affidavitinreply submitted before this Court in para 13 on page 137 that in the event the petitioner owns up the contents of 42 gunny bags upon said Muddamal being handed over to the Income Tax Department, at the time of finalizing the assessment, the requisite documents would be supplied as per the provisions of Section 138 and analogous provisions of the Act to the petitioner. Even the learned Senior Counsel Shri M.R.Bhatt appearing for the Income Tax Department, under the instructions from the concerned officer, has stated at the Bar that the Income Tax Department will furnish copy of the documents to the petitioner if an application to that effect is given by the petitioner. Thus, in view of the aforesaid averments and the statements made on behalf of the respondent No.1, it is clear that the Income Tax Department is not having any objection to supply the copy of the documents lying in 42 gunny bags and therefore the contention that if the copy of the documents lying in 42 gunny bags is not supplied to the petitioner then prejudice would be caused to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused, is required to be rejected. [28] Now, the next contention of the petitioner is with regard to the order dated 16.01.2015 passed by the learned Sessions Court in another application submitted by the respondent No.1 with regard to getting the custody of cash amount of ₹ 8.10 crores is concerned, it is required to be noted that the said currency notes are not handed over to the Income Tax Department by the learned Sessions Court because the said cash amount is important for the purpose of proving the case against the accused of C.R.No.I37 of 2013. The learned Special Public Prosecutor, therefore, objected to the application given by the Income Tax Department. The learned Sessions Court while rejecting the application of the Income Tax Department observed that the amount in question cannot be said or can be treated as Muddamal articles and is not subject of temporary custody, which is required to be handed over to any person claiming right over cash in question till the completion of trial as the cash in question can rightly be treated as trap money. Thus, prima facie, from the observations of the learned Sessions Court, it appears that the custody of the said amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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