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TMI Blog2007 (4) TMI 782X X X X Extracts X X X X X X X X Extracts X X X X ..... re not named in the FIR. The informant was one N.J. Roy, Commercial Tax Officer, Barrackpore and the FIR was lodged at Bijpur P.S. and, on the basis of such FIR Bijpur P.S. Case No. 95 dated 1.6.05 was started under the aforesaid Sections of the Sales Tax Act along with Section 409/468/471/120B of the IPC. The investigation was conducted by an officer of the Bureau of Investigation of Madan Street, Calcutta. The Inspector of Bureau of Investigation had no authority to conduct investigation in the aforesaid Bijpur P.S. case in which there was allegation of commission of offence under Section 409/420/468/471 of the IPC. After completing investigation chargesheet No. 113 dated 16.9.06 has been submitted for alleged offence under the aforesaid Sections of Sales Tax Act read with Section 409/420/120B of the IPC. When there was specific allegation of offence under different Sections of the IPC an officer of the Bureau of Investigation could not have performed investigation into the case. The investigation was wholly illegal. The submission of chargesheet and taking of cognizance were improper and illegal and the chargesheet should be quashed. 3. Mr. Bagchi also submitted that in a pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode is not permissible. In support of his contention Mr. Bagchi placed reliance on some decisions namely, Commissioner of Commercial Taxes, West Bengal v. West Bengal Taxes and Tribunal reported in 2000 STC 453, Roy V.D. v. State of Kerala reported in 2001CriLJ165 and State of West Bengal v. Narayan K. Patodia reported in 2000 C Cr. LR (SC) 319. 5. Mr. Bagchi further contended that these petitioners were not named in the FIR. They had no nexus with the alleged incident and played no role in the incident. They never paid sales tax. They only used to work for their proprietor. Under Section 88 of the Sales Tax Act it is the liability of the dealer to pay taxes. Section 30 of the Sales Tax Act lays down that every registered dealer shall furnish return and it is the duty of the dealers to pay taxes. The application forms of Ganga Tea Company were not seized to show that Ganga Tea Traders took part in the tea auction at Siliguri and purchased tea art subsequently evaded payment of tax. The base of the prosecution case was that the Ganga Tea Traders took part in the tea auction at Siliguri and purchased huge quantity of tea but did not pay tax. There are certain forms and application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial statute it will override the provisions of the Code and in the matter of investigation concerning evasion of sales tax, the Bureau exercises power of investigation as well as submission of chargesheet. Section 36 of the Code prescribes that police officers superior in rank to an Officer-in-Charge of a police station may exercise same powers, throughout the local area to which they are appointed. In this matter, the Deputy Superintendent of Police attached to Bureau directed investigation and he is an officer superior in rank to the Officer-in-Charge of concerned police station. The investigation was conducted in terms of his order and accordingly such investigation was neither illegal nor irregular. The police officer enjoy power from different Police Acts and officers of Bureau being police officers have the power to cause investigation in connection with matters relating to evasion of sales tax. 8. Mr. Goswami further submitted that a Division Bench of this Court rejected the anticipatory bail prayer of this petitioner. After rejection of the prayer for anticipatory bail the petitioners have preferred the instant revisional application which is not maintainable. Kamal De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 66. 10. Sub-section (6) of Section 7 makes it clear that the Bureau may, after a case has been investigated or enquired into by it, by order, assess or re-assess tax, impose penalty, determine interest, or collect or enforce payment of tax, penalty or interest in respect of such case under the said Act. Sub-section (8) of Section 7 prescribes that the Bureau shall have, for carrying out the purposes of this Act, the same powers as are referred to in Section 86. 11. The combined effect of Sub-sections (3), (4) and (6) is that the Bureau may investigate or hold enquiry into cases of alleged or suspected evasion of tax as well as malpractices connected therewith and after completion of such investigation or enquiry it should send a report in respect thereof to the Commissioner. The Commissioner on receipt of a report under Sub-section (3) require the Bureau to transfer to him any accounts, registers or documents relating to the said report seized by the Bureau and on such transfer such accounts, registers or documents shall be retained by him subject to the provisions of Section 66. 12. Section 65 of the Sales Tax Act lays down the procedure for production and inspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... police officers only according to the provisions of the Code or according to the provisions of other Police Acts and Police Regulation Book. In such matters, the officers of the Bureau or authorities under the Sales Tax Act, 1994 have no power of investigation in respect of such alleged or suspected offence/offences under the IPC. Elements of offence or offences under the IPC are totally different in respect of nature of alleged offence under the provisions of the Sales Tax Act. After registration of FIR only the police officers can exercise power of investigation and authority as well as jurisdiction under the provisions of the Code and the police officers have full power to proceed with the matter of investigation in accordance with different provisions of the Code. After lodging of FIR, the Bureau or officers attached to Bureau, or the authorities under the Sales Tax Act have no power of investigation or enquiry in respect of offence/offences under the IPC. The Bureau can investigate only in respect of evasion of tax, assessment, realisation, imposition and recovery of penalty as well as matters concerning malpractices connected therewith. 15. The officers attached to the Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the Commissioner. It succinctly reveal that the Commissioner can accord sanction for initiation of proceeding before the Court of Magistrate only in relation of offences and penalties under the Sales Tax Act, 1994. The Commissioner has no power to accord sanction for prosecution in respect of alleged offence in the FIR under Sections 409/420/468/471 of the IPC. In the instant matter the sanction for prosecution against the petitioners was defective, and in fact, there was no sanction by the Commissioner for initiation of proceeding against these petitioners. The sanction accorded by the Commissioner is lying in the case diary. It reveals that the Commissioner, Commercial Taxes, West Bengal vide memo No. 13587 CT 9P- 18/2006 dated 17.8.06 accorded sanction for initiation of proceeding against (i) Kamal Chandra Dey, (ii) Chandan Rudra and (iii) Shyamlal Agarwal. In the chargesheet submitted by the Bureau the said sanction was quoted. The aforesaid sanction is totally silent in respect of these petitioners and, it is clear that, the Commissioner did not accord any sanction for prosecution or for lodging complaint against these petitioners. Accordingly, initiation of the proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbined reading of Section 4(2) and Section 5 of the Code indicate that all offences, whether under the IPC or under any other law, have to be investigated, enquired into, tried or otherwise dealt with according to the provisions of the Code, unless there is clear enactment relating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences in which case such an enactment will prevail over the Code. It is well-known that when no special procedure is prescribed by the special law, the procedure in the Code should be followed. In the Sales Tax Act, 1994 there is no special provision showing manner of investigating, enquiring into, trying or otherwise dealing with the offences under the IPC. Accordingly, Section 4(2) of the Code cannot be invoked by the Bureau of Investigation or its officers to assume powers of investigation under the Code which can be exercised by the regular police officers under the Code. In the FIR besides different Sub-sections of Section 88 of Sales Tax Act it was disclosed that there was commission of several cognizable offences under the IPC. Had it been only FIR relating to offence or offences under Section 88 and Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot invoke power under Section 156 of the Code cannot direct an officer subordinate to him to conduct investigation into cognizable cases disclosing offences under the IPC. 21. Mr. Goswami, the learned Public Prosecutor placed reliance on State of West Bengal v. Narayan K. Patodia (supra) and unreported judgment of this Court in Civil Rule No. 10627 (W) of 1975 (Biswanath Jhunjhunwala v. State of West Bengal) in support of his contention that the Bureau of Investigation has the power to investigate in this case and to submit chargesheet. The views of the learned Public Prosecutor are not acceptable. The decision in Biswanath Jhunjhunwala v. State of West Bengal (supra) is not applicable in the facts and circumstances of the present case. In that decision this Court only held that appointment of subordinate post in the Bureau with the concurrence of the government is valid. In that decision it was not laid down by this Court that the police personnel attached to Bureau enjoy the same power of police officers in the matter of investigation under the Code. 22. In State of West Bengal v. Narayan K. Patodia (supra) the Supreme Court laid down the law completely on a different c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efficacious investigation can be conducted by the police investigating agency only, and not by the Bureau of Investigation as the Bureau has power to conduct investigation into alleged offence under Section 88 of the Sales Tax Act and other offence under the Sales Tax Act itself and Bureau has no power to investigate in respect of serious offences under the IPC. 23. In Roy V.D. v. State of Kerala (supra) the case was under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985. It was found that the arrest and search was made by an officer who was not empowered or authorised to conduct search and to arrest the accused and there was violation of provisions of Sections 41 and 42 of the said Act. It was held by the Supreme' Court that, violation of Sections 41 and 42 being per se illegal would vitiate the trial and in such a case powers under Section 482 of the Code can be invoked to quash the proceeding. Though the principle laid down in this reported decision is not concerning the provisions of Sales Tax Act, the basic law laid down there is squarely applicable in the present matter. In the present case different serious Sections of the IPC were mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the truth. If the Bureau decides to confine investigation into alleged or suspected evasion of tax as well as malpractices connected therewith it may conduct investigation exercising powers and procedures as laid down in Sales Tax Act, 1994. 26. The other decisions cited by Mr. Bagchi do not require consideration as I am of opinion that the stage is not ripe to consider whether prima facie elements of alleged offence against the petitioners were established or not. Such decisions were concerning elements of offence under Sections 405, 406 and 420 of the IPC and what are the subject-matter of consideration during the stage under Sections 227 and 228 of the Code. The petitioners were not named in the FIR and against the petitioners chargesheet was submitted for alleged offence under Section 120B of the IPC. Against the petitioners chargesheet under Section 88 or under any Sub-section of Section 88 of the Sales Tax Act was not submitted. I have also indicated earlier that the Commissioner did not accord sanction against the petitioners for prosecuting them. The Bureau could not have submitted chargesheet against the petitioners under Section 120B of IPC as Bureau had no authority t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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