Full Judgment Text
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PETITIONER:
STATE OF WEST BENGAL
Vs.
RESPONDENT:
NARAYAN K.PATODIA
DATE OF JUDGMENT: 06/04/2000
BENCH:
K.T. THOMAS & D.P. Mohapatra
JUDGMENT:
of 1999
Thomas J.
L.......T.......T.......T.......T.......T.......T.......T..J
Leave granted.
The High Court of Calcutta has quashed the FIR registered in
a Police Station mainly on the ground that the person who
forwarded the complaint to the police had no authority to do
so. The State of West Bengal has, therefore, filed this
Appeal by Special Leave. The FIR was registered for certain
offences under the Indian penal Code and West Bengal Sales
Tax Act 1994 (for short the ‘Sales Tax Act’). The complaint
which was made the basis for such an FIR contained the
allegations that respondent submitted two applications on
21.1.1998 before the Assistant Commissioner of Commercial
Taxes, Burdwan impersonating himself as one Mohan Agrawal
(478 Katwa Road, Hari Narainpur, Burdwan) who is a
fictitious person; respondent signed the applications in
the false name of the said Agrawal and described him as a
businessman dealing in spices under the trade name "Parbati
Traders." The applications were made in the Proforma
(Form-A) prescribed under the West Bengal Sales Tax
(Registration and Turnover) Rules 1957, and they were
appended with documents all of which were forged. On the
basis of the said fabricated documents respondent obtained
registration under the Sales Tax Act which entitled him to
make purchases at concessional rate of sales tax, and also
to receive permits for importing spices from outside the
State. On the strength of the registration so obtained the
respondent applied for the issue of five permits to import
spices the sales tax of which would have been 2.73 lacs. In
those applications again the respondent personated himself
to be the aforesaid fictitious Mohan Agrawal.
When the Bureau of Investigation formed by the Government of
West Bengal under the Sales Tax Act, got secret information
about the fraud played by the respondent they conducted some
discreet investigation and then it was revealed to them that
the respondent had committed the said forgery and
impersonation to defraud the government of huge sales tax
amount. It was further revealed that respondent had wangled
another registration on 1.12.1977 in the fictitious name of
Surendra Luhariwala who purportedly did business as
"Luhariwala Trading Company 33/1, N.S. Road Calcutta." By
using the said registration respondent carried on business
and defrauded the Government of sales tax to the tune of
Rupees thirty-two lakhs.
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The said complaint was presented by the Assistant
Commissioner of Commercial Taxes to the Deputy
Superintendent of Police who was then attached to the Bureau
of Investigation formed under the Sales Tax Act. The said
Deputy Superintendent, in turn, forwarded the complaint to
the officer in charge of Hare Street Police Station,
Calcutta with a request to "start a case under Sections 403,
409, 465, 468, 471, 419, 420 read with 120B of Indian Penal
Code and Section 88(1)(b)(6) and (7) of the Sales Tax Act,
1994 treating the complaint as FIR."
Pursuant thereto the Station House Officer of Hare Street
Police Station registered the FIR. Respondent, getting
scent of the same moved the City Civil Court, Calcutta for
anticipatory bail but that was rejected on 11.6.1998. He
then moved the High Court invoking its revisional and
inherent jurisdiction for quashing the FIR and on such
motion being made further investigation was stayed by the
High Court as per order dated 17.6.1998. Finally the FIR
was quashed as per the impugned judgment delivered by
learned single judge of the Calcutta High Court on
19.11.1998.
Learned single judge advanced the following reasoning, inter
alia, for quashing the FIR:
"Under Section 7 of the West Bengal Sales Tax Act, the
Bureau of Investigation constituted under the said Act 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 provisions of law"
and the said Deputy Superintendent of Police Forwarded the
same to Hare Street Police Stattion......."
Further again the single judge observed thus
"The person who was making the FIR by forwarding a petition
of complaint based on investigation already done had no
authority to direct the officer-in- charge, that the case
must be again investigated by his own subordinate officer
Sri Amitava Chakravorty and that too under the different
sections of the IPC read with Section 88(i)(6) & (7) of the
West Bengal Sales Tax Act, 1994. Such a procedure is
unknown either in the Criminal Procedure Code or in the West
Bengal Sales Tax Act, 1994."
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The High Court expressed the opinion that under the Sales
Tax Act only a Bureau of Investigation constituted by the
State Government can conduct the investigation or hold
inquiry into any case of alleged or suspected evasion of tax
as well as malpractices connected therewith, and hence no
police officer can investigate into the offences under the
Indian Penal Code or any other Act read with offences
committed under Section 88 of the Sales Tax Act.
It is apparent that learned single judge has not been
appraised of the danger involved in adopting such a
farfetched legal proposition. Assume that a person who
committed any offence under section 88 of the Sales Tax Act
has also committed some other serious offence in connection
with perpetration of the former offence what would be
position of the police if the view adopted by the learned
single judge is to be followed. Is it that police force has
merely to look askance at such persons helplessly on the
mere ground that an offence under Sales Tax Act is also
involved and hence the powers of the police are
unenforceable in that condition?
Learned single judge of the High Court has relied on Section
4 of the Code of Criminal Procedure (for short the ‘Code’).
To find further support to his view that when a special law
is provided for dealing with offences thereunder such
offence can be dealt with only in accordance with the
provisions of such special law.
To understand the scope of the said legal trammel it is
advantageous to refer to Section 4 of the Code. It is
extracted below:
4. Trial of offences under the Indian Penal Code and other
laws. - (1) All offences under the Indian Penal Code (45 of
1860) shall be investigated, inquired into, tried, and
otherwise dealt with according to the provisions hereinafter
contained.
(2) All offences under any other law shall be investigated,
inquired into, tried, and otherwise dealt with according to
the same provisions, 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."
So far as the offences under Indian Penal Code are concerned
sub-section (i) mandates that they can be investigated into
and tried according to the provisions of the Code. When we
go to sub-section (ii) which concerns the offences "under
any other law" it is again the rule that such offences shall
also be investigated and tried according to the provisions
of the Code itself, but with a rider that such investigation
or trial shall be subject to the regulation regarding "the
manner or place of" such investigation or trial prescribed
in any enactment for the time being in force. In Mirza
Iqbal Hussain vs. State of Uttar Pradesh [1982 (3) SCC 516]
a two judge bench of this Court (Chandrachud, CJ and
Chinnappa Reddy, J.) considered the contention that in a
trial of offences under Prevention of Corruption Act the
special court has no power to confiscate any property in
view of Section 4(2) of the Code which excludes powers under
the code while dealing with offences under laws other than
Indian Penal Code. After extracting Section 4(2) of the
Code learned judges observed as follows:
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"It is clear from this provision that in so far as the
offences under laws other than the Indian Penal Code are
concerned, the provisions of the Code of Criminal Procedure
apply in their full force subject to any specific or
contrary provision made by the law under which the offence
is investigated or tried."
The Constitution Bench which decided AR Antulay vs. RS
Nayak [1984 (2) SCC 500] has cautioned that the Code is the
parent statute which provides for investigations, inquiry
into, and trial of cases and unless there is specific
provision in other statute to indicate a different procedure
to be followed, the provisions of the Code cannot be
displaced. Taking cue from the said ratio this court held
recently in Gangula Ashok vs. State of Andhra Pradesh [JT
2001 SC 379] while interpreting Section 4(2) of the Code as
follows:
"A reading of the sub-section makes it clear that subject to
the provisions in other enactments all offences under other
laws shall also be investigated, inquired into, tried and
otherwise dealt with under the provisions of the Code. This
means that if other enactment contains any provision which
is contrary to the provisions of the Code, such other
functions would apply in place of the particular provision
of the Code. If there is no such contrary provision in
other laws, then provisions of the Code would apply to the
matters covered thereby."
We did not come across any provision in the Sales Tax Act
which inhibits the powers of the police as conferred by the
Code. Chapter X of the Act deals with "Offences and
penalties." Section 88 falls within the said chapter.
Sub-section (1)c reads thus:
"Whoever- c fails to make payment of interest payable under
section 31 or section 32;.........shall be punishable with
simple imprisonment which may extend to six months or with
fine not exceeding one thousand rupees or with
both.............."
Section 88 (6) & (7) are also extracted below:
(6) Whoever wilfully attempts in any manner to evade or
defeat any tax imposed under this Act, shall, in addition to
any other penalty provided by any law for the time being in
force, be liable also for the offence of dishonest
misappropriation of property under section 403 of the Indian
Penal Code, and shall be punishable with imprisonment of
either description which shall not be less than three months
but which may extend to two years or with fine not exceeding
ten thousand rupees or with both.
(7) Whoever knowingly produces incorrect accounts, registers
or documents, or knowingly furnishes incorrect information
or suppresses material information shall be punishable with
imprisonment of either description which shall not be less
than three months but which may extend to two years or with
fine not exceeding ten thousand rupees or with both."
The offence envisaged in sub-section (6) is specifically
created as supplemental to any other penalty provided by any
law for the time being in force. This means, offences
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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
sub-section (6) of Section 88.
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 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.
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 Penal Code as
part of the same transaction neiher the regular police nor
any special police force nor even the Central Bureau of
Investigation can be authorised to conduct investigation.
The accused in such cases would then be well ensconced
insulated from the legal consequences of proper and
effective investigation. Criminal justice would be the
serious casualty then.
That apart, how could the FIR be quashed if the
investigating agency should have been different? By lodging
FIR alone no investigation is conducted by the police. It
is the first step towards starting investigation by the
police. If High Court was of the opinion that investigation
has to be conducted by the Bureau then also there was no
need to quash the FIR. Any way we take the view that as
offences under the Indian Penal Code are also involved,
efficacious investigation can be conducted by entrusting it
to the police investigating agency. Inherent powers of the
High Court as recognised in Section 482 of the Code are
reserved to be used "to give effect to any orders under the
Code, or to prevent abuse of the process of any court or
otherwise to secure the ends of justice." It is quite
unfortunate that learned single judge overlooked the reality
that by quashing the FIR in the case the High Court did not
achieve any one of the above factors. On the contrary, the
result of quashing the FIR had rendered the allegation of
offences made against a person to remain consigned in stupor
perennially. Hence, instead of achieving ends of criminal
justice, the impugned order would achieve the reverse of it.
So from any angle, the High Court has committed serious
error in quashing the FIR. We, therefore, allow this appeal
and set aside the impugned judgment.
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