TMI Blog2012 (10) TMI 1274X X X X Extracts X X X X X X X X Extracts X X X X ..... , 468, 120 B, 34 of IPC and Section 74(1)(b)(c)(d)(e), 74(2), 74(3)(b)(o)(r), 74(4) of Maharashtra Value Added Tax Act, 2002 at Police Station Wani. 3. Both the petitioner no.2 as well as the applicant claim to be the Directors of the G.S. Oils Ltd. and the applicant further claims that he is not entrusted with any functions in the day to day affairs of the company. 4. The First Information Report (FIR) is registered on the basis of the complaint made by Deputy Commissioner (Vigilance), Sales Tax Department, Amravati Division, Amravati, specifically alleging that the petitioner company had evaded the tax liability of crores of rupees by preparing false record that the goods were exported outside the State when as a matter of fact the goods were sold in the local market thereby evading the sales tax payable to the State. 5. Heard Shri Jaiswal, the learned counsel appearing on behalf of the petitioners in Writ Petition No. 396/202 and Shri Dewani, the learned counsel appearing on behalf of the applicant in Criminal Application No. 494/2012. 6. Shri Jaiswal, the learned counsel has made the following submissions in support of the petition: That when a special statute is created by a L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Public Prosecutor on the contrary submits that there is nothing in the statute i.e. VAT Act which prohibits the investigation to be carried by a Police Officer. The learned APP by relying on the judgment of the Apex Court in the case of State of W.B. .vs. Narayan K. Patodia reported in (2000) 4 Supreme Court Cases 447, submits that in the absence of a prohibition in the statute prohibiting a Police Officer from carrying out investigation, when there are offences under the special statute and also under the general statute, the Police can very well carry out the investigation. 10. Undoubtedly some of the offences with which the petitioner and applicant have been charged are only found both in Section 74 of the VAT Act and also under the Indian Penal Code. However, from the record it can clearly be seen in addition to the offences which are common in both the statue , the FIR is also registered for certain offences like under Sections 464 and 471 of I.P.C. 11. For appreciating the submissions of the petitioners, it would be relevant to refer to the provisions of Section 77 of the VAT Act which reads thus: 77. Investigation of Offences (1) Subject to such conditions, if any, as ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es falling under the Indian Penal Code and committed by a person while committing the offence contemplated in sub section (6) cannot get displaced for the sole reason that the accused has committed the offence falling under subsection (6) of Section 88. 17. Section 7(1) of the Sales Tax Act empowers the State government to constitute a Bureau of Investigation for discharging the functions referred to in sub section (3) thereof. It empowers the Bureau to carry on the investigation 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 Bureau of Investigation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of W.B. (supra). 15. The said case has been tried to be distinguished by Shri Jaiswal on the ground that sub section (6) of Section 88 also provides that the accused shall also be liable for prosecution under Section 403 and, therefore, on facts the said case would not be applicable to the facts of the present case. With great respect to the arguments advanced by the learned counsel, we are unable to accept the same. Para 16 of the said judgment would be relevant to consider the submission in that regard. 16. The Apex Court has in clear terms has held that merely because the accused has committed an offence falling under the special statute would not mean that the offences under the Indian Penal Code would get displaced. As already discussed hereinabove, the accused are also charged additionally for the offence punishable under Sections 465 and 471 of I.P.C. which are not common with any of the offences as provided under the VAT Act. 17. Insofar as the judgment of the Apex Court in the case of Jeewan Kumar Raut .vs. Central Bureau of Investigation is concerned , the facts in the said case are totally different. In the said case, the FIR was registered by the Police Officer an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fiscation, the provisions of Cr.P.C. would apply with the result that the Court trying an offence under the Prevention of Corruption Act would have the power to pass an order of confiscation by reason of the provisions contained in Section 452 of Cr.P.C. In this view of the matter, this judgment rather supports the case of the State. 19. Insofar as the third contention of Shri Jaiswal that FIR should not be registered unless there is a finding in the assessment order regarding evasion of tax is concerned, we find that the said submission is without any merit. There is nothing either in the VAT Act or the under the Cr.P.C. which would support such a proposition. 20. In this view of the matter, we do not find any merit in writ petition. 21. Insofar as the application is concerned, only ground raised in this application is that there are no specific averments in the FIR against the applicant as to the role played by him i.e. the applicant is not entrusted with any functions in the day to day affairs of the company. Shri Dewani, the learned counsel has placed reliance on a catena of judgments in this regard. However, perusal of those judgments would reveal that the judgments either rel ..... 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