2019 (11) TMI 1531 - HC - Income Tax

Offence under Section 276CC - grievance of the petitioner is that immediately, after recording the chief examination of PW1, the petitioner, being the accused himself, was not given an opportunity to cross examine the witness - Petitioner fairly conceded that the Petitioner herein has not filed any formal application in E.O.C.Nos.35 and 34 of 2018 before the learned Additional Chief Metropolitan Magistrate for the grievance now redressed - HELD THAT - In view of the fact that no formal application has been filed before the Court concerned, this Court cannot direct the learned Magistrate to consider the request made by the Petitioner. Therefore, the Petitioner is directed to file a petition before the Additional Chief Metropolitan Magistrate, E.O.II, Egmore in E.O.C.Nos.35 and 34 of 2018 within a period of one month from the date of receipt of copy of this order and upon receipt of such petition, the learned Additional Chief Metropolitan Magistrate, E.O.II, Egmore is directed to consider the same and pass orders in accordance with law. If the order passed by the learned Additional Chief Metropolitan Magistrate, E.O.II, Egmore is not in favour of the Petitioner, then the Petitioner is entitled to approach this Court by way of filing proper petition.

Summary

Issues:
1. Direction to permit accused to cross-examine witness before framing of charges under Section 276CC of the Income Tax Act, 1995.

Detailed Analysis:
The Criminal Original Petitions were filed to direct the Additional Chief Metropolitan Magistrate to allow the accused to cross-examine a witness in two cases related to a violation under Section 276CC of the Income Tax Act, 1995. The respondent had lodged a private complaint against the accused, leading to the cases being taken on file. The witness, K.Shivalingam, was examined as PW1, and the case was adjourned for framing of charges. The petitioner, who is the accused, was not given the opportunity to cross-examine the witness after the chief examination. The Magistrate refused to consider the grievance, stating that the accused is not entitled to cross-examine before framing of charges.

The counsel for the petitioner admitted that no formal application was filed before the Magistrate regarding this grievance. Due to the absence of a formal application, the court could not direct the Magistrate to address the petitioner's request. The court directed the petitioner to file a petition before the Magistrate within a month, and upon receipt, the Magistrate was instructed to consider the petition and pass orders as per the law. If the Magistrate's decision is unfavorable to the petitioner, they are allowed to approach the High Court by filing a proper petition. The Criminal Original Petitions were disposed of with these directions.