2005 (10) TMI 589 - SC - Indian Laws

Summary

Issues Involved:
1. Role of the petitioner in the production of documents for car clearance.
2. Consideration of materials under Section 173 of the Criminal Procedure Code (CrPC) at the stage of framing charges.
3. Opportunity of being heard under Section 239 CrPC.
4. Applicability and impact of the Kar Vivad Samadhan Scheme (KVSS) on the prosecution.
5. Statutory exclusion under Section 95 of the Finance Act, 1998.
6. Immunity from prosecution under Section 91 of the Finance Act, 1998.
7. Relevance of the case law in determining the applicability of KVSS.

Issue-wise Detailed Analysis:

1. Role of the Petitioner in the Production of Documents for Car Clearance:
The petitioner argued that he had no role in the production of documents for the clearance of the car. However, the court found that the petitioner was involved in the conspiracy to get customs clearance for the imported Lexus car by producing forged documents, including an invoice showing an undervalue of the car and a letter dated 08.09.1994 that was used to obtain a Foreign Inward Remittance Certificate (FIRC).

2. Consideration of Materials under Section 173 CrPC at the Stage of Framing Charges:
The petitioner contended that the materials found in documents under Section 173 CrPC alone should not be considered while framing charges. The court referred to the Supreme Court decision in State of Orissa v. Debendra Nath Padhi, which held that at the stage of framing charges, only the material produced by the prosecution should be considered, and not the material produced by the accused.

3. Opportunity of Being Heard under Section 239 CrPC:
The petitioner argued that under Section 239 CrPC, the accused should be given an opportunity of being heard. The court agreed that the Magistrate must consider the documents filed under Section 173 CrPC along with the representation made by the prosecution and the accused after giving them an opportunity to be heard.

4. Applicability and Impact of the Kar Vivad Samadhan Scheme (KVSS) on the Prosecution:
The petitioner claimed that the filing of the final report was in gross violation of the KVSS, which provided for the settlement of customs duty and immunity from prosecution. The court examined the provisions of the Finance Act, 1998, and the KVSS, noting that the scheme provides for the settlement of tax arrears and immunity from prosecution for offences under direct and indirect tax enactments.

5. Statutory Exclusion under Section 95 of the Finance Act, 1998:
The court addressed the statutory exclusion under Section 95 of the Finance Act, 1998, which excludes the application of the scheme to persons against whom prosecution for certain offences had been instituted before the filing of the declaration. The court found that the prosecution was instituted after the declaration was made, thus Section 95 did not apply to the petitioner.

6. Immunity from Prosecution under Section 91 of the Finance Act, 1998:
The court analyzed Section 91 of the Finance Act, 1998, which grants immunity from prosecution for offences under direct and indirect tax enactments. The court noted that the immunity does not extend to offences under the Indian Penal Code (IPC), and the allegations against the petitioner included offences under IPC sections 420, 467, 471, and 120B, which are not covered by the immunity provided under Section 91.

7. Relevance of Case Law in Determining the Applicability of KVSS:
The petitioner relied on the case of Heeralal Harilal Bhagwati v. CBI, where the Supreme Court held that the immunity under KVSS extended to offences that may prima facie be made out on identical allegations of evasion of customs duty. However, the court distinguished the present case from Heeralal's case, noting that the allegations against the petitioner involved false representations and misdeclarations related to the clearance of the car, which were not directly related to the evasion of customs duty.

Conclusion:
The court concluded that the petitioner was not entitled to discharge or quashing of the proceedings based on the KVSS, as the immunity provided under the scheme did not extend to the offences alleged against the petitioner under the IPC. The criminal revision petition and the criminal original petition were dismissed.