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TMI Blog2017 (4) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... ct do cover a criminal act and the offender, he gets out of the net of the Indian Penal Code. It cannot be said, by any stretch of imagination, that Section 85 of the Gujarat Value Added Tax Act, 2003 covers the offences punishable under Sections 177, 406, 409, 419, 420, 465, 468, 471, 474, 477 and 120B of the Indian Penal Code. Reliance was placed in the case of State of West Bengal Versus Narayan K. Patodia [2000 (4) TMI 777 - SUPREME COURT OF INDIA], where By lodging FIR alone no investigation is conducted by the police. It is the first step towards starting investigation by the police. If High Court was of the opinion that investigation has to be conducted by the Bureau then also there was no need to quash the FIR. The matter is still at the stage of investigation. The Investigating Officer is otherwise duty bound to act in accordance with law in support of the prosecution case before the chargesheet is filed - application rejected - decided against applicant. - CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 8925 of 2017 - - - Dated:- 10-4-2017 - MR. J.B.PARDIWALA, J. FOR THE APPLICANT : MR ND NANAVATY, SENIOR ADVOCATE FOR NANAVATY ADVOCATES ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the said decision of the Supreme Court, submits that in the absence of a prohibition in the statute prohibiting a police officer from carrying out investigation, when there are offences under the special statute and also under the general statute, the police can very well carry out the investigation. He submits that the allegations levelled against the applicant herein and the other coaccused are very serious. The tax evasion is to the tune of ₹ 24 Crore and odd. He pointed out that many documents have been forged for the purpose of evasion of the tax liability. He submits that the investigation is at a very crucial stage and the police should be permitted to complete the same in accordance with law. 7 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the F.I.R. should be quashed. 8 Before adverting to the rival submissions canvassed on the either side, few relevant provisions of the Act should be looked into. 9 Section 85 of the Act provides for offences and penalties. It reads as under: 85. Offences and penalties. (1) Whoever, (a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue or with the intention that the Government may be defrauded of its revenue, shall, on conviction, be punished with imprisonment for a term which may extend to one year and with fine of rupees twenty thousand. (3)Subject to the provision of section 97, if any Government servant discloses any particulars referred to in subsection (1) of section 92, he shall, on conviction, be punished with imprisonment for a term which may extend to six months and with fine. (4)Whoever aids or abets any person in commission of any act specified in subsections (1) or (2) shall on conviction, be punished with rigorous imprisonment which shall not be less than three months but which may extend to one year and with fine of rupees twenty thousand. (5)Whoever commits any of the acts specified in subsections (1) to (3) and the offence is a continuing one under any of the provisions of these subsections, shall, on conviction, be punished with daily fine which shall not be less than rupees five hundred during the period of the continuance of the offence, in addition to the punishments provided under this section. (6)Where a dealer is guilty of an offence specified in subsections ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rintendent of Police, who in turn, forwarded it to the officer in charge of the police station, for starting the investigation for the offences punishable under Sections 403, 409, 465, 468, 471, 419 and 420 read with Section 120B of the Indian Penal Code and Sections 88(1) (b), (6) and (7) of the Sales Tax Act, 1994 treating as F.I.R. The registration of the said F.I.R. came to be challenged before the Calcutta High Court. The Calcutta High Court holding that the investigation could not have been carried out by anyone except the Bureau of Investigation, as constituted under the said Act, quashed and set aside the proceedings. The State of West Bengal went in appeal before the Supreme Court. The Supreme Court, while setting aside the judgment of the Calcutta High Court, has observed in paras 16, 17, 18 and 19 which read thus: 16. The offence envisaged in subsection (6) is specifically created as supplemental to any other penalty provided by any law for the time being in force. This means, offences falling under the Indian Penal Code and committed by a person while committing the offence contemplated in subsection (6) cannot get displaced for the sole reason that the accused has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigating agency. Inherent powers of the High Court as recognised in Section 482 of the Code are reserved to be used to give effect to any orders under the Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is quite unfortunate that learned single judge overlooked the reality that by quashing the FIR in the case the High Court did not achieve any one of the above factors. On the contrary, the result of quashing the FIR had rendered the allegation of offences made against a person to remain consigned in stupor perennially. Hence, instead of achieving ends of criminal justice, the impugned order would achieve the reverse of it. 14 The facts of the present case are almost identical to the one with the facts of the case which were before the Supreme Court in the case of State of West Bengal (supra). Not only that, but in the present case, Section 88 does not provide that the investigation shall be carried out only for the offences of the Value Added Tax Act. In that view of the matter, the present case, even on facts, is squarely covered by the judgment of the Supreme Court in the case of State of West Bengal (Supra) . 15 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is (Section 416 IPC), then he can be charged with the allegation of cheating by personation and punished under Section 419 for a term which may extend to 3 years or with fine or both. If a person makes any false document with the intent to cause damage or injury to the public or to any person, or to support any claim or title, then he can be prosecuted for an offence of forgery (Section 463) and can be punished under Section 465 with imprisonment which may extend to 2 years or with fine or with both. If a person commits forgery for the purpose of intending that the document forged by him shall be used for the purpose of cheating then he can be punished with imprisonment for a term which may extend to 7 years and fine (Section 468). If a person makes or counterfeits any seal, plate or other instrument for making an impression, intending that the same shall be used for committing any forgery which would be punishable under Section 467 or with such intent, in his possession any such seal, plate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gle Judge of the High Court, while rejecting such contention, observed as under; 14. Secondly, the issue itself, that just because a particular statute governs a particular issue and therefore, proceedings cannot be initiated for violation of any other statute, also does not hold good in my opinion, as what the Punjab Vat Act deals with, is only evasion of tax and the penalties etc. that are to be levied, in case such evasion is proved. However, the fabrication of the documents itself being an offence punishable under the provisions of the IPC, in my opinion, there is no reason why, for the commission of such offence alone, proceedings under the IPC would not be maintainable against the petitioner. 18 In taking the aforesaid view, the learned Single Judge relied upon the decision of the Supreme Court in the case of Institute of Chartered Accountants of India (supra) referred to above. 19 Let me now deal with the two decisions relied upon by Mr. Nanavaty, in support of his submissions. 20 In Sharat Babu(supra) , the appellant therein and others were arraigned as accused in an F.I.R. for the offence punishable under Sections 292 and 294 of the Indian Penal C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l have effect notwithstanding anything inconsistent therewith contained in any other law. The Delhi Rent Control Act, 1958 also contained nonobstante clauses. Interpreting the same, the Court held: When two or more laws operate in the same field and each contains a nonobstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise. Since statutory interpretation has no conventional protocol, cases of such conflict have to be decided in reference to the object and purpose of the laws under consideration. A piquant situation, like the one before us, arose in S hri Ram Narain v. Simla Banking Industrial Co. Ltd. [AIR 1956 SC 614], the competing statutes being the Banking Companies Act, 1949 as amended by Act 52 of 1953, and the Displaced Persons (Debts Adjustment) Act, 1951. Section 45A of the Banking Companies Act, which was introduced by the amending Act of 1953, and Section 3 of the Displaced Persons Act, 1951 contained each a nonobstante clause, providing that certain provisions would have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein. 31 In Slidaire India Ltd. v. Fairgrowth Financial Services Ltd., 2001(2) R.C.R. (Civil) 198 : (2001) 3 SCC 71 , this Court while dealing with two special statutes, namely, Section 13 of Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 and Section 32 of Sick Industrial Companies (Special Provisions) Act, 1985, observed as follows: Where there are two special statutes which contain non obstante clauses the later statute must prevail. This is because at the time of enactment of the later statute, the Legislature was aware of the earlier legislation and its non obstante clause. If the Legislature still confers the later enactment with a non obstante clause it means that the Legislature wanted that enactment to prevail. If the Legislature does not want the later enactment to prevail then it could and would provide in the later enactment that the provisions of the earlier enactment continue to apply. 32. The aforesaid passage clearly shows that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused from time to time, was required to file a police report, it was precluded from doing so by reason of the provisions contained in Section 22 of TOHO. The Supreme Court, ultimately, took the view that the High Court had fallen into error in taking the view that although the charge had not been made out under Section 67 of the I.T. Act, yet the police could have proceeded under Section 292 of the Indian Penal Code. 21 What is important in the decision of the Supreme Court referred to above is the ratio that if the special Act has an overriding effect like the one under the Information Technology Act, then it makes all the difference. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of the Indian Penal Code. The Supreme Court laid emphasis on the three provisions of the Information Technology Act i.e. Sections 67, 79 and 81. In the Gujarat Value Added Tax Act, 2003, there is no provision providing any overriding effect on any other law for the time being in force. What weighed with the Supreme Court was the fact that the provisions of the Information Technology Act deal with obscenity in electronic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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