Reopening of assessment u/s 147 - claim of depreciation on computers and alleged excess relief of tax credit u/s 90/91 since the tax credit in the income tax return was less than the tax credit reflected in Form 26AS - HELD THAT:- In this case, a comparison of the details sought for by the Officer and supplied by the petitioner at the stage of original assessment and of the reasons for re-assessment that is, depreciation and foreign tax credit reveal total identity of the issues, identified at the time of original assessment and the reasons on the basis of which proceedings for re-assessment have been initiated. Moreover, and admittedly, there is no new material, let alone tangible material, that has come to the notice of the authority to justify the impugned proceeding for re-assessment.
As far as the claim of depreciation is concerned, the Officer proceeds on the ground that computers constitute plant and machinery, eligible for depreciation at 15% and not 60% as claimed by the petitioner. Learned Senior Standing Counsel would submit that as the petitioner is in the business of media and communication and operates a television channel, computers and all accessories thereof would assume a far more integral role in the business, as such equipment would support editing, graphics, sound effects and other facilities intrinsic to the business.
Though an attractive argument, such distinction has not been envisaged in Appendix I (depreciation schedule), and Part A/Tangible Assets, categorises all computers under the head ‘Machinery and Plant’, eligible for depreciation at 60%. Moreover, the depreciation statement referred to in the reasons recorded, was admittedly on record from the commencement of original proceedings.
The above conclusion would be equally, if not more relevant, to the second issue concerning the alleged claim of excess tax credit. The reasons state that excess relief under Section 90/91 has been claimed and the tax credit in the income tax return is less than the tax credit in the 26AS. In such an event see no escapement of income to tax, as the petitioner, going as per Form 26AS, has more tax to its credit as against what was claimed in the return of income.
Tax credit claimed has been rejected in full in intimation dated 30.01.2014 and the petitioner has sought rectification of the intimation on 09.05.2017 and restoration of the credit claimed. There is thus no prejudice that has been caused to the revenue in regard to the claim of foreign tax credit and the initiation of re-assessment proceedings on this ground is found to be misconceived, in light of the judgment Sun Engineering Works (P) Ltd. [1992 (9) TMI 1 - SUPREME COURT]
Issuance of the notice u/s 148 to a non-existing entity due to amalgamation - As both the factum of amalgamation and change of name have been duly intimated to the Officer. Despite this, notice under Section 148 has been issued to ACPL, which, in my view invalidates the proceedings in full. The fact that the petitioner has responded to the notice would not bring to life an invalid proceeding. The response of the petitioner has been on the letter head of ASCPL, the reasons have been communicated to ASCPL and the objections of the petitioner to the assumption of jurisdiction have been filed on the letter head of ASCPL. Despite the reiteration of the fact of amalgamation and change of name by the petitioner on 21.03.2019 in response to notice under Section 148 of the Act, Section 143(2) notice has been issued to ACPL, a non-existing entity.
Whether the gas plant located at Duliajan belonging to the appellant, which supplies gas for manufacturing polymers at Lepetkata forms part of the manufacturing unit at Lepetkata so as to enable appellant to claim Cenvat credit on capital goods installed at Duliajan?
HELD THAT:- Issue notice, returnable within 3(three) weeks.
Condonation of delay of 462 days in filing the special leave petition - State's practice of filing "certificate cases" to complete a formality constitutes an abuse of the judicial process - HELD THAT:- The parties cannot keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government, (Collector, Land Acquisition, Anantnag & Anr. [1987 (2) TMI 61 - SUPREME COURT]. This situation no more prevail and this position had been elucidated by the judgment of this Court in OFFICE OF THE CHIEF POST MASTER GENERAL VERSUS LIVING MEDIA INDIA LTD. [2012 (4) TMI 341 - SUPREME COURT].
Such attempts of the State Governments are deprecated to approach this Court only to complete a mere formality. Learned counsel for the petitioner strenuously contends that there is valuable land involved. If it was so, then the concerned officers responsible for the manner in defending this petition must be made to pay for it.
Applicability of exception clause in the Medical Entrance Information Brochure for the National Eligibility and Entrance Test UG-2020 (NEET 2020) - whether the Industrial Development Bank of India Limited (IDBI Limited) can be regarded as an undertaking of the Government of India? - HELD THAT:- Section 5 of the 2003 Act is crucial and clinches the issue against the petitioner and for the respondents. Perusal of the 2003 Act clearly reveals cessation of the Development Bank as a body corporate which, by operation of the said Act, would stand transferred to and vested in the Company to be formed and registered under the 1956 Act. The Development Bank, from a body corporate, by reason of the 2003 Act (which also repealed the IDBI Act) attained an identity of a “Company” governed by the 1956 Act.
Though “undertaking” is a word of large import, it has to be read and understood in the context where it occurs. In the present context, a Government of India undertaking would mean an undertaking run by the Government of India, that is to say, it belongs to the Government of India.
The vigilance control over IDBI Limited by the Central Vigilance Commission cannot be the guiding factor for exploring the answer to the issue which are primarily tasked to decide. On this writ petition, it is not required to decide whether exercise of vigilance control over IDBI Limited by the Central Vigilance Commission is legal and valid. Such a question can be dealt with in an appropriate proceeding, if the occasion therefor arises.
Conclusion - The IDBI Limited is not a Government of India undertaking, and the petitioner is not entitled to the exception clause in the NEET 2020 Information Brochure.
Addition u/s 14A r.w.r. 8D - Absence of exempt income - HELD THAT:- Assessee has not derived any exempt income in the impugned assessment year. Hon'ble jurisdictional high court holds that sec. 14A under Rule 8D disallowance does not get attracted in absence of such an exempt income. We therefore uphold the CIT(A)’s impugned action reversing the assessment findings to this effect. Revenue’s appeal is dismissed.
FIR u/s 420/406/120-B of the IPC - FIR disclosing cognizable offences - SEBI's investigation affecting the quashing of the FIR - directors of Modex International have hatched a conspiracy by illegally forging and misappropriating his securities by making adjustments in their books that these securities have illegally been sold without his authorization with the object and intent to defraud him - HELD THAT:-Clearly, a plain reading of the FIR indicates that it does disclose cognizable offences. Thus, the contention that the FIR is liable to be quashed as not disclosing any cognizable offence, is clearly unmerited.
The contention that the FIR is required to be quashed as SEBI is also investigating a similar compliant, is also unmerited. SEBI’s jurisdiction extends to investigate complaints and take appropriate action for violation of Securities and Exchange Board of India Act, 1992 (SEBI Act) and the Rules and Regulations made thereunder. It does not extend to prosecuting offences under the IPC.
The fact that SEBI is investigating or prosecuting the petitioner for offences under the SEBI Act, or the relevant regulations made thereunder does not in any manner warrant quashing of the present FIR. It also does not preclude the investigating agency from investigating the allegations regarding offences punishable under the Indian Penal Code, 1860.
The High Court of Bombay directed that a bunch of cases be called upon on January 7, 2021. Status-quo as of the current date is to be maintained. The order will be digitally signed and forwarded to the Petitioner by email.
Levy of charges to break the bank guarantee into two parts, one relating to 17% and other relating to 83% of the bank guarantee amount - HELD THAT:- Respondent No. 5 shall issue two fresh bank guarantees of the amount to be communicated by learned counsels for both the parties. The bank guarantee relating to 17% of the amount shall be retained by the Bank to be produced before this Court at the time of passing of the order on the petitioner’s application and the copy thereof shall be furnished to learned counsels for both the parties. The second bank guarantee with respect to 83% of the amount shall be handed over by respondent No. 5 to Mr. Jasmeet Singh, learned Standing Counsel, within 10 working days of the completion of all the necessary formalities.
It is clarified that the Bank shall not levy any charges on the petitioner for breaking up of the bank guarantee and issuing the two bank guarantees in terms of this direction. However, the necessary expenditure including the Stamp duty shall be borne by the petitioner.
Seeking bail on medical grounds - medical emergency is there or not - HELD THAT:- The applicant has been prosecuted for the offence under the provisions MCOC Act. The previous application was preferred on the ground that the applicant was tested positive for Covid-19. Report was called from Jail. The said application was rejected on 12th June, 2020 on the ground that subsequently the report of test was negative and medical emergency not in existence. On the previous date of hearing the question relating to the maintainability of the application was kept open. It is not necessary to dwell upon the said issue in the light of report submitted by the Chief Medical Officer, it is not inclined to grant bail on medical ground. Medical report is taken on record.
The report indicate that the applicant is under close observation of prison Medical Officers in consultation with J.J. Hospital Doctors. He was regularly referred to J. J. Hospital for follow up and his overall health is moderately stable at present. Hence, no ground is made to grant relief in this application.
Rejection of petitioner’s application for further examination of the respondents in judicial custody - HELD THAT:- This Court is unable to concur with the view of the trial court. Plainly, if the petitioner requires to examine the respondents and interrogate them in respect of certain facts that have emerged during the course of investigation, the petitioner, as an Investigating Agency, must be granted full access to the respondents to do so.
The present petition is allowed and the officials of the petitioner are granted permission to interrogate and examine the respondents. The petitioner shall complete the same within a period of two weeks commencing on 01.01.2021. The petitioner shall ensure that the team of its officials deputed to examine or interrogate the respondents does not exceed three in number.
Maintainability of appeal on low tax effect - Under invoicing of exports of iron ores - HC [2020 (1) TMI 1115 - GUJARAT HIGH COURT] confirmed that Tribunal has taken into consideration the applicability of the report of the Justice M.B. Shah Commission so as to make addition of the alleged amount under-invoicing by the AO - HELD THAT:- The special leave petition is dismissed on the ground of low tax effect. However, the question of law is left open.
Conviction and sentence under Sections 489B/34 and 489C/34 of the Indian Penal Code - trafficking - recovery of huge quantity of fake Indian currency Notes (FICN) - relaibility of statements - sentencing of accused - HELD THAT:- Throughout the evidence there is no corroboration by any prosecution witness in respect of such evidence and there is neither any other documentary evidence to substantiate the same. Further, no materials relating to such fact was brought in evidence by the prosecution and surprisingly the petition of complaint also did not implicate the said Rahul alias Ikram alias Ikramul as an accused. The prosecution case is silent whether in course of investigation any process was issued or any attempt was made to apprehend the said Rahul. Additionally, the seizures were effected at the office of the revenue authorities and thereafter the statements under Section 108 of the Customs Act were recorded. Relying upon the judgment of the Hon'ble Supreme Court in the case of Noor Aga (supra) this court is of the opinion that the confessional statements so recorded under Section 108 of the Customs Act solely cannot be a foundation for arriving at the conclusion of the guilt of the accused-appellants.
The prosecution has failed to prove the charges under Section 489B of the IPC - However, the accused appellants have failed to dislodge the prosecution evidence so far as the seizure of the fake currency notes from their possession are concerned.
The accused appellants are acquitted of the charge under Sections 489B/34 of the IPC consequently their conviction and sentence so imposed by the Ld. Trial Court is set aside - the accused appellants are convicted under Sections 489C/34 of the IPC and their sentence so imposed by the trial court are accordingly affirmed.
Correct head of income - interest received on FD - Income from other sources or business income - CIT(A) deleted addition - HELD THAT:- We find that CIT(A) has given the finding that the fixed deposits were created and thereafter used as margin for pertaining bank loan for the purpose of business. In this way of the matter the Nexus with business is duly established. The case laws referred by the CIT(A) duly supported proposition - the issue may not have much of the revenue impact. Hence in considered opinion once it is established that there was business nexus there is no infirmity in the order of CIT(A) allowing the netting off of the same. Accordingly the upon the order of CIT(A) on this issue.
Disallowing interest for diversion of interest-bearing fund - interest bearing funds have been diverted to give interest free loan to related parties - as business expediency of making interest free advances to wholly owned subsidiaries has been established, CIT appealed deleted the disallowance of proportionate interest - HELD THAT:- Assessee has granted funds to subsidiaries as well as other parties whose land was being used for development. AO has disallowed the interest portion which was attributable to the funds granted to subsidiary companies.
When the funds have been granted to subsidiary companies for the purpose of business, the business expediency is established. Case of S.A. Builders [2006 (12) TMI 82 - SUPREME COURT] is directly applicable.
It is also not disputed that assessee has granted funds to the various parties whose land was being used for development by the assessee. Hence once the business expediency is established no disallowance on account of diversion of interest-bearing funds is permissible. Hence no infirmity in the order of learned CIT(A). Accordingly we uphold the same - Decided against revenue.
Force majeure defense - Substantial delay on the part of the developer in handing over possession of the apartments which were contracted to be sold - recovery of parking and club charges by the developer - compensation for delay in handing over possession of the flats.
Force majeure defence - HELD THAT:- A developer in the position of the Appellant would be conscious of these delays and cannot set this up as a defence to a claim for compensation where a delay has been occasioned beyond the contractually agreed period for handing over possession. As regards the stop work orders, there is a finding of fact that these were occasioned by a succession of fatal accidents which took place at the site and as a result of the failure of the Appellant to follow safety instructions. This is a pure finding of fact. There is no error of law or fact. Hence, there are no substance in the force majeure defence.
Compensation on account of delay - HELD THAT:- It is true that in the present case, the contractual rate of Rs. 10 per square foot per month is double the rate fixed in the agreements in the above case. On the other hand, the Court must be conscious of the fact that the situation in the real estate market in Delhi is very distinct from that in Bengaluru both in terms of rentals and land values. This has not been disputed. The flat buyers had to suffer on account of a substantial delay on the part of the Appellants. In such a situation, they cannot be constrained to the compensation of Rs. 10 per square foot provided by the agreements for flat purchase. However, having regard to all the facts and circumstances, the compensation on account of delay should be brought down from 7% to 6%. Moreover, the amount, if any, which has been paid in terms of the contractual rate shall be adjusted while computing the balance due and payable in terms of the judgment.
Assessment of cash deposits found in the bank account of the assessee and commission earned at the rate of 3% on the said amount - assessee has been alleged to be an entry operator providing bills of purchase & sales without any actual business transactions - amount of Rs.7.37 Crs. has been added on protective basis and information regarding the beneficiaries was passed on to the Assessing Officer having jurisdiction over the beneficiaries for substantive assessment AND commission has been added on substantive basis.
HELD THAT:- The Co-ordinate Bench of ITAT in [2020 (5) TMI 550 - ITAT DELHI] has adjudicated on both the issues. The addition being protective in nature has been deleted by the order of the Tribunal. The commission charged @3% has been brought down to 0.5%.
Since, the issues stands squarely covered by the earlier order of the Tribunal in the absence of any material change and the facts of the case except the amount involved, we hereby hold as under addition made on protective basis is directed to be deleted and commission to be charged @0.5% - Appeal of the assessee is allowed.
Estimation of income - bogus purchases - confirmation of addition to the tune of 12.5% by CIT(A) - whether the GP rate applied by Ld. CIT(A) is reasonable or not? - HELD THAT:- We are of the view that in the case of a ferrous and non ferrous items the profit is very meager ranging from 2% to 4 % and GP rate as directed by the Ld. CIT(A) appears to be excessive and unreasonable. The co-ordinate benches of the Tribunal have been taking a consistent view that in such type of cases having trade of ferrous and non ferrous steel items ,the profit GP can not exceed 3 to 4%.
Though the Ld. CIT(A) has correctly followed the decision in the case of CIT vs. Simit P. Sheth [2013 (10) TMI 1028 - GUJARAT HIGH COURT] however, the rate applied is on the higher side. We are, therefore, of the view that it would be reasonable if the GP rate @ 5% is applied on the said bogus purchases to bring the additional income on bogus purchases to tax which the assessee may have made by purchasing the goods from grey market. Accordingly, we direct the AO to apply a GP of 4% and the order of Ld. CIT(A) is modified to that extent. The appeal of the assessee is partly allowed.
Seeking grant of bail (successive bail application) - Smuggling - Herion (Chitta) - illicit trade of sale and purchase of narcotic substance - offences under Sections 8/21/22 NDPS Act - whether or not successive bail applications will lie before this Court? - HELD THAT:- The law on this issue is very clear that if an earlier application was rejected by an inferior court, the superior court can always entertain the successive bail application.
There is no dispute to the fact that the quantity of contraband recovered from the possession of the petitioner does not fall within the parameters of commercial quantity and that the same is an intermediary one. The rigor of Section 37 of NDPS Act, therefore, is not attracted to the instant case. The bail petition of the petitioner is, as such, required to be considered on the touchstone of the principles governing grant of bail under Section 437 of Cr. P. C. - It is a settled position of law that grant of bail is a rule whereas its refusal is an exception. The question whether bail should be granted in a case has to be determined on the basis of the facts and circumstances of that particular case.
The quantity of contraband allegedly recovered from the accused does not fall within the parameters of 'commercial quantity' and in view of the same is intermediary one. The rigor of Section 37 of the NDPS Act thus does not come into play. The observation of learned trial court while rejecting the bail application of the petitioner that the offence alleged to have been committed by the petitioner is serious in nature and the same affects the society in general and the young generation in particular, cannot be the sole reason for rejection of the bail application, particularly when the allegations are yet to be established. Allowing the petitioner to remain in custody because of the reason that the offences alleged to have been committed by him are serious in nature, would amount to inflicting pre-trial punishment upon him.
The respondents have not placed on record anything to show that the petitioner is habitual offender or that he has previously been either implicated or convicted of similar offences. It is not the case of the respondents that any further recovery is to be effected from the petitioner. As per the status report filed by the respondents, the challan has already been filed before the trial Court. Thus, further incarceration of the petitioner in the instant case cannot be justified. If the petitioner is not enlarged on bail, it may also have an adverse impact on his preparation of defence against the charges that have been laid against him before the learned trial court. The discretion regarding grant or refusal of bail cannot be exercised against the petitioner on the basis of public sentiments or to teach him a lesson as his guilt is yet to be proved.
The petitioner is admitted to bail subject to the conditions imposed - petition allowed.
Challenged the Order in original, Appeal and Revision - Confiscation of Aluminum Coated Gold Wires - Penalty - failed to prepare any seizure report at the time of the seizure of the goods - seeking Release and return back to the petitioner the impugned goods (Aluminum Coated Gold Wire) in terms of section 125(1) of Customs Act, 1962 - violation of Section 112(a) - Whether the omission or failure on the part of the concerned officer to draw a separate seizure memo along with the panchnama would render the seizure illegal and thereby vitiate all the subsequent proceedings right upto the confiscation of the goods seized - HELD THAT:- There is no justification for the acceptance of the contention that omission or failure to draw a separate seizure memo u/s 110 of the Act is sine qua non for taking action u/s 124 of the Act. These two sections are entirely independent to each other. There is no substance in the contention that if no separate seizure memo under Section 110 of the Act is prepared, the same will render the seizure of the goods by itself illegal and the authority u/s 124 of the Act will also have no jurisdiction thereafter to proceed with the confiscation proceedings or with the imposition of penalty. The words used in Section 112 and Section 124 respectively of the Act are “any goods” and “any person”. These words are of the widest import and they cannot be given a restricted meaning. There is nothing in these provisions to indicate that the goods in respect of which an order of confiscation or penalty can be passed u/s 111 and Section 112 respectively must be the goods seized under the provisions of Section 110 of the Act.
It would be too much for this Court to take the view that in the absence of a separate seizure memo the authorities could not have proceeded further or assumed jurisdiction for the purpose of confiscation of the goods. “To confiscate” would mean to adjudge goods or property to be forfeited to the public domain and to deprive the owner of the right of ownership of the same. It cannot be gainsaid that adjudication of confiscation of goods can be recorded even without seizure of the goods. Similarly, personal penalty can be imposed even when the goods have not been seized. Such a situation is contemplated by clause (b) of Section 112 of the Act.
At the cost of repetition, we state that it would be too much to say that the omission or failure to draw or prepare a separate seizure memo along with the panchnama would render all subsequent proceedings bad in law. Thus, we reject the first contention of Mr.Shastry as regards Section 110 of the Act.
Whether clause (a) or clause (b) of Section 112 would apply or both, failing which the proceedings would be liable to be quashed - In our opinion, there is nothing in Section 112 which requires that means rea must be proved before penalty can be levied under that provision. If on facts, it is found that the assessee had made a false representation, Section 112 is with regard to penalty for improper importation of goods. It is the blameworthy and suspicious conduct which is, indeed, the sine qua non for invoking the provision of Section 112 of the Act. Once a finding is recorded by the competent authority that the writ-applicant herein attempted smuggling of gold by concealing the same without payment of the Customs duty, coupled with the fact that the writ-applicant had handed over the Indian Customs Declaration Form (Disembarkation Slip) declaring that he was not carrying/ having any dutiable articles before the Customs Officer on duty, that would clearly attract the provisions of Section 112 of the Act and, in our opinion, no further finding is required that the assessee had also the mens rea.
Whether, such goods are legally or illegally imported - fall within Section 11 of the Customs Act, 1962 - A conjoint reading Sections 2(33), 11 or 11A of the Act and other provisions in the Customs Act, 1962, and any other law, for the time being in force, would also make it clear that importation of goods, defined as illegal or prohibited or without complying with the conditions, or in violation of statutory provisions in the Customs Act, 1962 or any other law for the time being in force and in all cases, whether there is either total prohibition or restriction, in the light of the judgment of the Supreme Court in Om Prakash Bhatia's case [2003 (7) TMI 74 - SUPREME COURT] such goods should fall within the definition of Prohibited goods. When import is in contravention of statutory provisions, in terms of Sections 11 or 11A of the Customs Act, 1962 or any other law, for the time being in force and when such goods squarely fall within the definition 'illegal import', or the other provisions in the statute, dealing with prohibition/restriction, the same are to held as, "prohibited goods" and liable for confiscation.
If there is a fraudulent evasion of the restrictions imposed, under the Customs Act, 1962 or any other law for the time being in force, then import of gold, in contravention of the above, is prohibited. For prohibitions and restrictions, Customs Act, 1962, provides for machinery, by means of search, seizure, confiscation and penalties. Act also provides for detection, prevention and punishment for evasion of duty.
The expression, 'subject to prohibition in the Act and any other the law for the time being in force.' in Section 2(33) of the Customs Act, has wide cannotation and meaning, and it should be interpreted, in the context of the scheme of the Act, and not to be confined to a narrow meaning that gold is not an enumerated prohibited good to be imported into the country. If such narrow construction and meaning have to be given, then the object of the Customs Act, 1962, would be defeated.
The Provisions in the Customs Act, 1962, dealing with prohibition/restriction or any other law for the time in force, have to be read into Section 2(33) of the Act. Section 11A of the Act, as to what is 'illegal import', cannot be thrown to winds, while interpreting, 'what is prohibited goods', in terms of Section 2(33) of the Customs Act, 1962. To add, while interpreting Section 2(33) of the Customs Act, 1962, as to what is prohibition, imposed in other laws, for the time being in force, one cannot ignore, the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, rules framed by way of delegated legislation, like the Baggage Rules, 1998, framed in exercise of the powers conferred under Section 79 of the Customs Act, 1962 or for the matter, Section 77 of the Customs Act, 1962, which mandates, the owner of the baggage for the purpose of clearing the goods, to make a declaration of the contents of the baggage to the proper office and also the customs Notification No.3/2012, dated 16.01.2012, that only passengers of Indian origin or a passenger in possession of a valid passport, issued under the Passport Act, 1967, who have stayed abroad for six months and above alone are eligible to import gold of foreign origin and clear the same on payment of customs duty, at the rate prescribed.
Thus, in the overall view of the matter, we are convinced that no case is made out by the writ-applicant for grant of any relief as prayed for in this writ-application.
In the result, this writ-application fails and is hereby rejected.
Wilful defaulter - appellants contend that although a demand for payment was made against the borrower company no demand was made against them - HELD THAT:- The right of a borrower on review is very fundamental and extensive. It is not the type of review on the narrow grounds conceived of by Order 47 Rule 1 of the Code of Civil Procedure. When the representation is required to be full on facts and law the consideration is also required to be detailed with reasons on each and every point raised. The question whether a copy of the order of the identification committee was served on the appellants or whether upon service the appellants did not make any representation before the review committee, not gone into. These are questions of fact, not discussed by the review committee. There is no scope to enter into this controversy at the appellate stage. The records as shown to us are silent on this point. The communication dated 4th January, 2017 only tell us that the review committee had declined to review the order of the decision of the identification committee.
When a relevant fact is not considered while exercising this discretion, the considerations are different and the appeal court has the jurisdiction to set aside or modify the interim order appealed against - It is true that this order of the NCLT was not in existence at the time the review was made by the said committee. It is in existence now. For doing complete justice to the case, it is important that this development is also considered by the review committee.
Fresh opportunity granted to the appellants to approach the review committee - application disposed off.
Seeking grant of anticipatory bail - illegal abduction - delay in lodging FIR - HELD THAT:- Number of submissions have been made by the learned counsel appearing on behalf of the appellant-accused on political vendetta, malafide, delay in lodging the FIR, even the maintainability of the impugned FIR etc. However, taking into consideration that the quashing petition filed by the appellant-accused is pending before this Court and the issue whether the FIR/criminal proceedings are required to be quashed or not is at large before this Court, it is not proposed to elaborately deal with all the submissions made by the learned counsel appearing on behalf of the respective parties.
However, considering the fact that the impugned FIR has been lodged/filed by the brother of the deceased after a period of almost 29 years from the date of incident and after a period of 9 years from the date of decision of this Court in the case of Davinder Pal Singh Bhullar [2011 (12) TMI 656 - SUPREME COURT] and nothing is on record that in between he had taken any steps to initiate criminal proceedings and/or lodged an FIR, it is opined that at least a case is made out by the appellant for grant of anticipatory bail under Section 438, Cr.P.C. Many a time, delay may not be fatal to the criminal proceedings.
This Court reserved the liberty in favour of the father of the deceased to take recourse to fresh proceedings by specifically observing that if permissible in law. It is reported that the father of the deceased died in the year 2014. Till 2014, the father of the deceased did not initiate any fresh proceedings. After a period of 9 years from the date of decision of this Court in the case of Davinder Pal Singh Bhullar, all of a sudden, now the informant – brother of the deceased has woken up and has initiated the present criminal proceedings. Whether the fresh/present proceedings are permissible in law are yet to be considered by this Court in the pending proceedings for quashing the impugned FIR.
Looking to the status of the appellant and it is reported that he has retired in the year 2018 as Director General of Police, Punjab after 30 years of service and the alleged incident is of the year 1991 and even in the present FIR initially there was no allegation for the offence under Section 302 IPC and the allegations were only for the offences under Sections 364, 201, 344, 330, 219 and 120B of the IPC, for which there was an order of anticipatory bail in favour of the appellant and subsequently the offence under Section 302 IPC has been added on the basis of the statements of Jagir Singh and Kuldip Singh – approvers only, it is opined that the appellant has made out a case for anticipatory bail.
The impugned judgment and order passed by the High Court, as well as, the learned Additional Sessions Court dismissing the anticipatory bail applications of the appellant for the offence punishable under Section 302 IPC in connection with FIR No. 77 dated 6.5.2020, registered at P.S. City Mataur, District S.A.S. Nagar, Mohali are hereby quashed and set aside - petition allowed.
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