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TMI Blog1997 (3) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1983, the assessment year 1984-85, the said firm credited the accounts of its creditors with the interest payable to them on the loans taken from them. Under section 194A(1) of the Income-tax Act, 1961 (hereinafter referred to as " the Act "), the said firm, at the time of crediting of such interest to the account of the payee or at the time of payment thereof, whichever is earlier, was obliged to deduct income-tax thereon at the rate in force and under section 200 of the said Act was required to pay within the prescribed time, the sum so deducted to the credit of the Central Government. Though the said firm had credited interest payable and had shown deduction of tax therefrom, but due to paucity of funds and bad liquidity position could neither pay the interest to the creditors, nor could pay the tax so shown to have been deducted to the Central Government within the time so specified. However, subsequently the interest as well as the tax deducted was paid to the creditors and to the Central Government respectively. For the relevant assessment year deduction of tax on interest amounted to Rs. 2,17,476. Till March, 1990, a sum of Rs. 34,396 was paid and the balance of Rs. 1,83,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant factors and in particular the payment of the full amount of the tax deducted at source. In addition to that, various other grounds were taken to assail the matter complained of in the writ petition as mentioned above. The writ petition was moved upon notice to the respondents before a learned single judge of this court when the matter was argued threadbare. The learned single judge of this court by an order dated April 28, 1995, summarily rejected the writ petition. After holding, inter alia, that the writ jurisdiction in a matter like this should be exercised only in rare cases, the present is not such a rare case and that it would be the obligation of the accused to make out some cause or excuse which is sufficiently reasonable for explaining non-payment of tax, but it would not be the obligation of the complainant, the Income-tax Officer, to plead or prove the negative. The learned single judge also felt that he is not called upon to make any comment upon the argument that because a partnership firm or a company cannot be sent to jail and compulsory imprisonment is provided for the offences, those would vanish altogether from the scene even in so far as the partners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Authority for alleged violation of section 14 of the Delhi Development Act, 1957. Some of the persons, so prosecuted, challenged the legality of the prosecution by filing writ petitions and some by filing criminal petitions for quashing of the conviction or prosecution. The Supreme Court while dealing with the matter in paragraph 7 of the report observed (page 497) : " In an appropriate case it may be, rather, is, permissible to protect a person from illegal and vexatious prosecution by grant of an appropriate writ or in exercise of the inherent or revisional powers of the High Court. " The Supreme Court, however, on the merits found that the prosecutions initiated by the said authority against the respondents are not cases of that type. The question there was, whether the master-plan had specified any use of the buildings as distinguished from land. The Supreme Court held that it was a question of fact in each case, whether the master-plan had specified a particular use of a particular building and whether the person prosecuted had incurred the penal liability under section 29(2) of the said Act for the alleged violation of section 14 thereof. The Supreme Court then observed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court or even this court to substitute its own discretion for that of the Magistrate or to examine the case on the merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under section 202 of the Criminal Procedure Code which culminate into an order under section 204 of the Code. Thus, it may safely be held that in the following cases, an order of the Magistrate issuing process against the accused can be quashed or set aside : (1) where the allegations made in the complaint or the statement of the witnesses recorded in suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d judges of the Supreme Court were dealing with a case where the High Court in a writ petition quashed the entire criminal proceedings initiated against respondent No. 1 inclusive of the registration of the first information report and had directed respondent No. 2 to pay the costs of respondent No. 1. It so happened that respondent No. 1 was a Minister of the State in 1977 and then became Chief Minister of the State for the period between 1982-87 and thereafter, became a Union Minister. After the general election to the Legislative Assembly of the State was held in June, 1987, respondent No. 2 presented a complaint before the then Chief Minister making certain serious allegations against respondent No. 1. On which, the officer on special duty in the Chief Minister's Secretariat made an endorsement on November 12, 1987, to the effect, " C. M. has seen. For appropriate action " and marked the same to the Director-General of Police who in turn made an endorsement on the same day to the effect " please look into this; take necessary action and report " and marked the same to the Superintendent of Police, Hissar. This was put up before the Superintendent of Police, Hissar, who was the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted under section 155(2) of the Code. 5. Where the allegations made in the first information report or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. " The Supreme Court thereafter observed : " We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul to see that its decision in exercise of this power is based on sound principles. The Supreme Court also observed that the inherent power so conferred should not be exercised to stifle a legitimate prosecution. It also observed that the High Court should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before the court and the issues involved are of great magnitude and cannot be seen in their perspective without sufficient material. In CBI v. Duncans Agro Industries Ltd., AIR 1996 SC 2452; [1996] 5 SCC 591; [1996] 87 Comp Cas 849 (SC), two learned judges of the Supreme Court were concerned with a matter arising out of section 482 of the Criminal Procedure Code. In that case, two first information reports were filed by the appellant, stating therein, that the respondent and others conspired with a criminal design to defraud the United Bank of India and the Canara Bank to misappropriate the charged stocks lying at different places and to obtain funds without any security. The said banks had filed suits for recovery of their dues and the said suits h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no material at all to show that prior to the lodging of the first information report there was any enmity between the accused and the informant or the investigating officer; the question of mala fide exercise of the power assumes significance only when the criminal proceeding is initiated on extraneous considerations and for an unauthorised purpose. In State of West Bengal v. Mohammed Khalid, AIR 1995 SC 785; [1995] 1 SCC 684, two learned judges of the Supreme Court held that the power of the High Court under article 226 of the Constitution to interfere with the criminal proceedings is limited. The Supreme Court observed that the High Court can interfere only in extreme cases where the charges ex facie do not constitute an offence, but when the matter is debatable it is not amenable to such jurisdiction and the allegations in the charge-sheet must be assumed to be true. It further held that the High Court cannot scrutinise materials to find fault in such allegations. In Baldev Singh v. State of Punjab AIR 1996 SC 372; [1995] 6 SCC 593, two learned judges of the Supreme Court held that a first information report is not a substantive piece of evidence, it is only relevant in judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down by the Supreme Court in Bhajanlal's case, AIR 1992 SC 604, in the matter of exercise of the power under section 482 of the Code to quash the first information report or complaint and held that the High Court was not justified in quashing the first information report and the complaint on the facts of that case. In State of Himachal Pradesh v. Pirthi Chand AIR 1996 SC 977; [1996] 2 SCC 37, two learned judges of the Supreme Court were dealing with a case where on receipt of secret information that charas, a contraband, was being dealt with at the bus stand, the head constable, Rattan Singh, along with other police officials were present at the bus stand known as Amb; they secured the presence of one Pradhan Subhas Chand and one Gurdas Ram and raided the house of the first respondent. On search, they found 1 kilo 15 grams of charas; they took a sample and divided the same into three parts; one was given to the accused, another was sent to the court and the third one was sent to the chemical examiner for analysis; on analysis it was found that it was charas and, accordingly, a charge-sheet was filed to prosecute the first respondent under section 20 of the Narcotic Drugs and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... availed of in laying a complaint or first information report itself does not disclose at all any cognizable offence---the court may embark upon the consideration thereof and exercise the power. " The Supreme Court also observed in paragraph 14 of the report that the evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. It held that the search may be illegal but the evidence collected, none the less, would be admissible at the trial. At the stage of filing the charge-sheet it cannot be said that there is no evidence and the Magistrate or the Sessions Judge would be committing an illegality to discharge the accused on the ground that section 50 or other provisions of the said Act have not been complied with. It observed that at the trial an opportunity would be available to the prosecution to prove that the search was conducted in accordance with law and even if the search is found to be in violation of law, what weight should be given to the evidence collected is yet another question to be gone into. In J. K. Industries Ltd. v. Chief Inspector of Factories and Boilers [1997] 90 FJR 65; [1996] 6 SCC 665, two learned j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ience of a reasonable person, but the same should be apparent on the face of the complaint itself. If the matter is not so apparent, but to make the same apparent arguments are required to be made, then the matter has to be left to the authorities who have been empowered to investigate into the matter but, however, if the offence has been compounded but still the prosecution is continuing or if an apparent civil dispute has been turned into a criminal case, then of course, the court may intervene, provided the other ingredients for exercise of such jurisdiction are present. The court may also intervene in cases where it is apparent on the face of the record that an action has been filed mala fide to wreak private vengeance. But merely a complaint has been filed by a rival in politics or business would not make the complaint a mala fide complaint. The complaint need not be precise, what is required is the brief facts for which the accused is sought to be prosecuted. According to us it is too much to expect of a complainant to use technical words of a charging section in the complaint or to write the same in the light of the judgments of court which had dealt with similar cases earli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that kind of argument cannot, we are of the view, be permitted to be made on a writ petition to stifle the prosecution at the threshold. It also cannot be said that the complaint does not disclose the essential ingredients of the offence. It was urged that it was not alleged in the complaint itself that the failure as alleged were without reasonable cause or excuse and therefore, the very essential ingredient of the offence is absent. In the complaint as we have stated above, it was not necessary to repeat the technical words of the charging section. The rules of pleading as laid down by the Code of Civil Procedure do not apply to complaints. Even if it was so required, we are of the view that after narrating the facts, which come squarely within the charging section, the complainant has alleged that the accused have committed an offence punishable under the charging section, which implies all ingredients of the charging section itself. In the instant case, it cannot be said that the initiation of the complaint against the partners is so bad that without any investigation, such initiation should be quashed. The words " partner " and " partnership " by the definition clause contain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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