2014 (11) TMI 269 - HC - Income Tax

Commission of offences u/s 277 Criminal complaint Criminal procedure prescribed u/s 245 Cr.P.C not fulfilled - Held that - The assessee filed a petition to quash the proceedings and the court disposed of the petition leaving open the right of the petitioner to file an application under Section 245 of the Code of Criminal Procedure for discharge and it is on that basis, the petition has been filed - it is seen from the order of the court that no pre charge evidence has been taken - only after taking evidence under Section 244 of Code of Criminal Procedure of the complainant and their witnesses and after considering the documents and evidence, court needs to consider whether charge has to be framed in this case or not and the revision petitioner has to be discharged or not and only thereafter, the question of framing charge or discharging the accused under Section 245 of Code of Criminal Procedure will arise.

Summary

Issues:
Petitioner seeking discharge under Section 245 of Code of Criminal Procedure based on a complaint alleging offenses under Section 277 of Income Tax Act and Section 181 of Indian Penal Code. Dismissal of the discharge petition by the court below challenged in revision petition.

Analysis:
The petitioner filed a petition for quashing the proceedings, which was disposed of by the court, leaving the right to apply for discharge. The petitioner then filed a discharge petition under Section 245 of CrPC, which was dismissed by the court below. The petitioner argued that the order passed was not legal and the offenses were not attracted based on the documents produced. The respondent's counsel contended that there was no illegality, and the petitioner's right to argue for discharge after pre-charge evidence was not precluded by the order.

It was noted that no pre-charge evidence had been taken in the case. The court highlighted that evidence under Section 244 of CrPC needed to be considered before deciding on framing charges or discharging the accused under Section 245. The court below was directed to expedite the inquiry, take pre-charge evidence, and then consider the discharge plea without being influenced by previous observations. The lower court was instructed to complete the inquiry and decide on discharge or framing charges within three months.

Additionally, the petitioner had filed for personal exemption under Section 205 of CrPC, but no orders were passed as the accused had not appeared or taken bail. The court directed the petitioner to appear, take bail, and then have the personal exemption application disposed of by the magistrate on the bail-granting date. The petition was disposed of with these directions, and the parties were asked to appear before the lower court on a specified date.

The order was to be communicated promptly to the court below for necessary action.