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2016 (4) TMI 486 - HC - VAT and Sales TaxWhether the State Police has the jurisdiction to entertain, institute and investigate offences under the VAT Act especially in view of Section 86(2)(a) read with Section 83 of the VAT Act - Held that - no authority as appointed under Section 9 of the Bihar Finance Act, 1981 (corresponding to section 10 of the VAT Act) has been conferred powers of an Officer-in-Charge of a Police Station for investigation of a cognizable offence as has been brought under CrPC. Further, no notification as published under Section 3(i) of the Bihar Finance Act, 1981 (corresponding to Section 86 (2) (a) of the VAT Act) has been brought to the notice of the court nor has it come to the notice of the court - upon its own inquiry. As argued by the petitioner that in view of section 51 of the Bihar Finance Act, 1981 read with Notifications and the Government Orders published thereunder, the Bureau of Investigation has been conferred with the power of the Officer-in-Charge of the Police Station for investigation of cognizable offence and that the said powers have been saved under Section 94 of the VAT Act and thus the Police Authorities stand divested of the powers to investigate offences which constitute an offence under the VAT Act as well as the IPC. The said argument cannot be countenanced in absence of any notification having been published under Section 51(3)(i) of the Bihar Finance Act, 1981 conferring the Bureau of Investigation with the power of an Officer-in-Charge of a Police Station. The only notification being Government Order No. 2775 dated 20.04.1983, constituting the Bureau of Investigation, also does not support the argument of the petitioners. The claim of the petitioners that the Bureau of Investigation was vested with the powers of the Officer-in-Charge of the Police Station does not stand substantiated in absence of any specific notification issued by the State Government in exercise of its powers as provided under section 51(3)(i) of the Bihar Finance Act, 1981 or under Section 86(2)(a) of the VAT Act. The powers that have been vested with the Bureau of Investigation is the power to investigate offences as provided under Section 49 of the Bihar Finance Act, 1981 and the corresponding Section 81 of the VAT Act but in absence of any power of Officer-in-Charge of a Police Station having been vested with the Bureau of Investigation it would not be possible for the Bureau of Investigation to inquire into the offences that would constitute an offence both under the Indian Penal Code as well as the VAT Act. Whether the institution and investigation by the police can be termed as an abuse of the judicial process - If an FIR can at all be registered for the offences under the IPC where there is an alleged infraction of provision of the VAT Act - Held that - with regard to Section 4(2) and Section 5 of CrPC that the provisions of Sections 83 and 86 of the VAT Act is to be analysed to see if the same provides for any special procedure for investigation of offences under the Tax law which also or exclusively constitutes an offence under the IPC. A reading of Sections 83 and 86 of the VAT Act along with Government Order No. 2775 dated 20.04.1983 would make it apparent that no power under the special Act vesting them with the powers of a police officer qua investigation of an offence under Chapter XII of the CrPC. A deeper reading of Chapter XII and Chapter XIV of the VAT Act would further show that no procedure of investigation has been prescribed for offences under the VAT Act or such offences which also constitute offence under the IPC to oust the jurisdiction of the police to register and investigate the offence. The VAT Act is silent with regard to the procedure that has to be followed by the Bureau of Investigation while making any investigation with regard to any of the offence and as such it cannot be emphasized that the jurisdiction of the Police Station stands ousted by virtue of Section 4(2) and Section 5 of the CrPC and more so when no power of Officer-in-Charge of a Police Station has been conferred upon any of the officers under section 83 of the VAT Act or upon the Bureau of Investigation under Section 86 of the VAT Act. The contention thus that the Bureau of Investigation constituted under the VAT Act is only competent authority to investigate in respect of any offence under the VAT 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 cannot be countenanced and more so when the alleged infraction would also constitute a penal offence under any other statute. It is thus evident as a day of light that in absence of a power of an Officer-in-Charge of a Police Station having been vested with the Bureau of Investigation or the designated officer under Section 86(2)(a) and Section 83(2) of the VAT Act, respectively, it is not open to the petitioners to allege lack of jurisdiction in the police to investigate the offence. A mere fact that VAT Act speaks of investigation by the Bureau of Investigation or an officer as designated under Section 83 of the VAT Act and that it does not refer to any investigation by the Police would thus oust the jurisdiction of Police is also not an argument that would pass the muster of the test of legality. Thus the institution of the FIR cannot be urged to be an abuse of the judicial process Generalia specialibus non-derogant , which means that when there is a conflict between a general and a special provision, the latter shall prevail has been resorted to - Whether the VAT Act being the special Act, having made provisions for institution of offences under the VAT Act, would override and divest the police authority to institute and investigate cases under the IPC - Held that - the doctrine states is if there is a conflict between a general provision and special provision, it is the special provision that shall prevail. The doctrine is not only applicable vis- -vis two statutes or provisions within a Statute or even within the legal instruments. But the said doctrine is to be invoked only as to whether there is a special conflict between the two provisions of which one is specific with regard to a subject matter while the other is general and covers the same subject-matter apart from other subject matter. The general/specific canon does not mean that the existence of a contradictory specific provision voids the general provision. Only its application to cases covered by the specific provision is suspended; it continues to cover all other cases . Therefore, the argument for quashing the First Information Reports on account of lack of jurisdiction in the police authorities to investigate an offence - which is punishable both under the VAT Act and under the IPC - as the special Act (VAT Act) ousts the jurisdiction of CrPC does not commend to this Court. The reason is simple, there is neither any conflict between the provisions of two statutes nor does there appears to be any attempt to cover the filed of CrPC with regard to investigation. In fact, to the contrary, where there was even an avenue available to cover the said field of grant of police powers to the authorities/ Bureau of Investigation - under the VAT Act has voluntarily and consciously been not taken by the State Government. - Decided against the appellant
Issues Involved:
- Jurisdiction of State Police to entertain, institute, and investigate offences under the VAT Act. - Whether the VAT Act, being a special Act, overrides the general provisions of the IPC. - Whether the institution and investigation by the police constitute an abuse of judicial process. Detailed Analysis: Jurisdiction of State Police: The petitioners contended that Section 83 of the VAT Act authorizes the Commissioner of Commercial Taxes to empower subordinates to investigate offences under the VAT Act, granting them the powers of an Officer-in-Charge of a Police Station as per the CrPC. They argued that Section 86 allows the State Government to constitute a Bureau of Investigation vested with similar powers. The petitioners emphasized that these provisions oust the jurisdiction of the police to investigate offences under the VAT Act and the IPC. The court, however, found that no Bureau of Investigation had been constituted under Section 86(1) of the VAT Act, nor had any officer been vested with the powers of an Officer-in-Charge of a Police Station under Section 86(2)(a) or Section 83 of the VAT Act. Thus, the police retain jurisdiction to investigate such offences. Special Act vs. General Act: The petitioners argued that the VAT Act, as a special Act, should override the general provisions of the IPC, invoking the principle of "generalia specialibus non-derogant." They cited previous judgments where the special provisions of an Act were held to exclude the application of the IPC. The court referred to the Supreme Court's decision in State of West Bengal vs. Narayan K. Patodia, which held that the institution of an FIR is not barred under a special Act unless explicitly stated. The VAT Act does not provide a comprehensive scheme for the investigation of offences that also constitute IPC offences. Therefore, the general provisions of the CrPC apply, allowing the police to investigate. Abuse of Judicial Process: The petitioners claimed that allowing the police to investigate offences under the VAT Act constitutes an abuse of judicial process, as the police are not well-versed in taxation matters. The court found no merit in this argument, stating that the police are competent to investigate offences that fall under both the VAT Act and the IPC. The court emphasized that the VAT Act does not provide a specific procedure for investigating such offences, and thus, the general provisions of the CrPC apply. Conclusion: The court dismissed the writ applications, holding that: 1. The police have jurisdiction to investigate offences under the VAT Act and the IPC. 2. The VAT Act does not oust the jurisdiction of the police or the application of the IPC. 3. The institution of FIRs by the police does not constitute an abuse of judicial process. The judgment reaffirms that in the absence of explicit provisions to the contrary, the general law (CrPC) applies to the investigation of offences, even when a special law (VAT Act) is involved.
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