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TMI Blog2016 (2) TMI 1384X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 16.7.2015 in Spl. C C No.327/2015 on the file of XXIII Additional City Civil & Sessions Judge/Special Judge under PC Act, Bengalore Urban District, Bangaluru (CCH-24) taking cognizance of the offences in so far as the petitioner is concerned. 4. The allegation against the petitioner is that she has instigated her husband to legalize the income illegally acquired by him. Further the rental income of Rs.90,000/- is claimed annually for the Assessment Years 2004-05 to 2008-09 and Rs.1,92,000/- for Assessment Year 2009-10 to 2010-11. It is also alleged that no agricultural income was claimed for Assessment Years 2006-07 to 2007-08 but later agricultural income is claimed and for the Assessment Years 1997-98, 1998- 99, 2000-01 to 2005-06 agricultural income is overwritten/tampered. Thus it is alleged that the petitioner has committed offences punishable u/s 109, 177, 468, 465 and 471 of Indian Penal Code. 5. The learned Magistrate on the basis of the charge sheet filed by Lokayuktha Police took cognizance against husband of the petitioner as well as the petitioner. Aggrieved by the same, the petitioner has filed the present petition as aforesaid. 6. I have heard the learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a part of the documents produced along with the charge sheet. The respondent police have suppressed the material evidence with mala fide intention to frame the petitioner. 12. The respondent police have concluded in the final report that he is not going to consider the I.T. returns for Assessment Year 2012-13 for the purpose of income earned to boost up the assets with a mala fide intention to implicate the petitioner. It is submitted that the court below has not applied its mind while taking cognizance. The order does not indicate that the learned Magistrate has applied his mind which is a prerequirement. The respondent police have no jurisdiction to investigate offences punishable exclusively under the Penal Code. On recording the evidence of the petitioner, petitioner is now arrayed as an accused using the said statements against her in violation of the fundamental right enshrined under Article 20(2) of the Constitution. 13. Lastly it is submitted, in the instant case when the petitioner has submitted all the documents, agricultural land owned by her, petitioner being partner of M/s.Vasanatha Khan Estates, with her father, the property standing in her name could not have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Judicial Magistrate & others (1998) 5 SCC 749 to advance the contention that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. (iii) Sunil Bharti Mittal vs., Central Bureau of Investigation, (AIR 2015 SC 923) Para-45 to 48 to the effect that there is sufficient ground for proceeding against the accused and formation of such an opinion is to be stated in the order itself. (iv) Sanjaysinh Ramrao Chavan vs., Dattatray Gulabrao Phalke & others, (2015) 3 SCC 123) to contend that the whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. (v) Mrs. Asha Parveen S.M. vs., State, (Crl.P.No.4645/2012 & connected matters) DD 16.7.2015 to submit that mere saying that "perused the records" does not indicate that the Magistrate has applied his mind and found that the allegations in the charge sheet papers are sufficient to constitute the offences alleged. (vi) C Vishvanatha & another vs., State of Karnataka, (2011(6) Kar. L.J. 632 to the effect that the police officers attached to the Lokayukta office can only o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons. The learned Magistrate is entitled to evaluate the materials on record and cannot appreciate to satisfy sufficiency of reasons to proceed against the accused at the time of taking cognizance. In the instant case, the order passed by the learned Magistrate is to the following effect: "Perused the final report. Cognizance is taken against the accused No.1 and 2. Register the case and issue summons to accused No.1 and 2 returnable by 10.8.2015". 20. The above order cannot be said to have passed the test of judicial application of mind. The first accused is alleged with what offences and second accused, the petitioner is alleged with what offences, is not to be borne out from the impugned order. It is no doubt true that it is the exclusive domain of the learned Magistrate to take cognizance of the offences. There is sufficient basis for proceeding against the petitioner and formation of such an opinion ought to have been indicated in the order. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is a prima facie case against the accused, though the order need not contain detailed reasons. 21. Mere saying that "perused the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders are issued in favour of the petitioner. The respondent police ought to have verified these things from the Department before alleging offence against the petitioner under Section 177 of IPC. 25. It is further allegation against the petitioner that she fabricated the statements filed along with the Return to the Income Tax Department and only in the internal statement, agricultural income is claimed and that the agricultural income is over-written/tampered. The Income Tax Department has already issued Assessment orders thereby accepting the income declared by the petitioner. It is the case of the petitioner that the respondent police have not verified the original income tax returns filed by the petitioner with the Department and the respondent police have not got confirmation from the Income Tax Department regarding over-writing/tampering. The petitioner has produced the endorsement dated 19.8.2015 vide Annexure-F to the petition that the information relating to the Assessment Years 1998-99 to 2002-03 is not furnished since the records are not available in the office. It was incumbent upon the respondent police to verify the originals before saying that the petitioner has tam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged exclusively with IPC offences and not in addition to offences as mentioned in Section 3 of PC Act and therefore, the respondent police could not have registered and investigated the case as against the petitioner. 29. The respondent police have already registered the case as against husband of the petitioner alleging offence of disproportionate assets to his known sources of income. The prosecution is at liberty to establish the said offences as alleged against him that he has acquired the properties in the name of the petitioner also. For the alleged acts of husband of the petitioner, petitioner cannot be held responsible just by alleging some or the other offences against her. If at all the properties in the name of the petitioner could be included in the properties of husband of the petitioner or not would be decided in the said case as against the husband of the petitioner itself. In the absence of prima facie materials as against the petitioner for the offences as alleged against her, the case as against the petitioner is an abuse of process of the court. 30. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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