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TMI Blog2024 (1) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... Penal Code, 1860 to the petitioner for filing the same before the Court of competent jurisdiction, Whether the Respondents had any right to appear and address arguments or raise any issue on facts or on law, before the learned ACMM at the pre-cognizance stage? - HELD THAT:- So far as an accused person is concerned, till the stage when the accused has been summoned by the Criminal Courts, he has no locus to interject or interfere with the proceedings before a Magistrate. The reason is not far to see, in as much as, till the cognizance of the offence is taken, the accused is not a person who is identified as such, for him to be vested with any right of audience, apart from the fact that it is possible that even after the preliminary inquiry under Section 202 Cr.P.C., the magistrate may dismiss the complaint, without even calling upon the accused. Even this Court in Mohua Moitra s case, [ 2019 (10) TMI 1579 - DELHI HIGH COURT] while relying upon the judgements of the Supreme Court, has assertively concluded that the prospective accused cannot stall the proceedings. In the present case, the learned ACMM had not only entertained and heard detailed arguments on behalf of the Respondent N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication or raise any objections qua territorial jurisdiction, conspiracy or bias etc. at the pre-cognizance stage. Equally, the learned Magistrate had, by entertaining the said application and retaining the arguments on such objections and considering the same vide the impugned order, acted with material irregularity necessitating entertaining of the present petition under section 482 Cr.P.C. Whether the issue of conspiracy is an issue of fact which can be proved or disproved only during trial at the time of evidence? - Conspiracy is an issue of fact and can be proved or disproved by the parties by leading evidence during trial and cannot be ascertained merely by appreciating either documents or arguments and therefore, no definitive conclusion on such issue can be reached by any Court at the stage of taking cognizance. The petitioner in the present case has leveled an allegation that the conspiracy has continued at Delhi, which may need to be tested in trial. In the present case, the learned ACMM appears to have committed the error of precisely reaching a definitive conclusion regarding conspiracy. Ld' Magistrate had also definitively concluded that the conspiracy had indee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates for R-10. Mr. Kapil Sibal and Mr. Dayan Krishnan, Senior Advocates with Mr. Ankur Chawla, Mr. Mahender Kumar and Mr. Amir Khan and Mr. Mahesh Kumar, Advocates for Impleading party-State of Chhattisgarh. JUDGMENT CRL.M.A. 10323/2023 CRL.M.A. 19314/2023 (Both for stay) 1. These are applications under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C. ) for stay of operation of the impugned part of the order dated 06.04.2023 passed by the learned ACMM (Special Acts), Central District, Tis Hazari Courts, Delhi in CT Case No. 1183/2022 titled as Income Tax Office Vs. Anil Tuteja Ors . 2. The brief facts culled from the impugned order dated 06.04.2023 are as follows: A complaint u/s 200 Cr.P.C was made by Income Tax Office through Mr. Seuj Kumar Saikia, DDIT, Inv. Unit-1(4), New Delhi, alleging commission of offence punishable u/s 276C(1)/277/278 read with Section 278B/278E of The Income Tax Act, 1961 (hereinafter referred to as The Act ) and section 120B/191/199/200/204 of Indian Penal Code, 1860 (in short IPC). Since, the present complaint was filed by a public servant acting in discharge of his official duties and in course of his employment, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Rs. 5 Crores were delivered by some person to him at instance of accused no. 1. Further investigation revealed whatsapp conversations between accused no. 1 and 4 regarding proposals of percentage shares of manufacture of country liquor, beer amongst various distillers of Raipur for FY 2019-20. They also discussed about the shares to be allotted to each group of distillers and their objections etc. From chats of accused no. 4 information about collection of bribes from liquor and other businesses by him and transfer of that money to accused no. 1 is unveiled. Photos of Rs. 10 and Rs. 20 currency notes were exchanged on whatsapp between accused no. 1 and 4 in order to communicate in code language about exchange of money. Issues of allotment of mines and payment of royalty etc. were also parts of chats of accused no. 1 and 4. Accused no. 9 M/s Lingraj Suppliers Pvt. Ltd. is a company incorporated in Kolkata on 12.02.2009 and is allegedly indirectly controlled by accused no. 1 and 2. Accused no. 9 is purportedly managed by one CA Vikas Agarwal (accused no. 7). Bank account numbers were shared by accused no. 7 with accused no. 2 which was followed by transfer of money into the bank ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to take backup of her e-mails then a device made an access from Singapore and deleted entire data available in the mail. Whatsapp chats of accused no 1 and 3 also showed that accused no. 3 wrote that her personal secretary Jay will give money to Chaitanya Baghel (S/o Chief Minister of Chhattisgarh). A diary maintained by accused no. 3 was also recovered from her residence wherein various transactions done over the years were recorded about which no satisfactory replies were given by accused no. 3. Chats between accused no. 1 and 3 using code words and abbreviations were also discovered which showed movement of unaccounted cash of crores of rupees. Accused no. 6 Vikas Agarwal @ Subu Agarwal exchanged whatsapp messages with accused no. 4 regarding accounting of collection of bribes/commission from sale of liquor showing that he was also privy to and involved in illegal activity of raising and movement of unaccounted cash for accused no. 1. As per the complaint commission/bribes amounting to Rs. 14.41 crores went to accused no. 1 between 28.07.2019 to 20.12.2019. 3. The petitioner/complainant being aggrieved of that part of the impugned order whereby the learned ACMM had directed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) committed by the accused persons on the ground that the Courts in Delhi lack the territorial jurisdiction over such offences, which is impermissible in law. 5. Learned ASG submits that the learned Magistrate taking cognizance of an offence must not necessarily have territorial jurisdiction to try the case as his power to take cognizance of the offence is not impaired by territorial jurisdiction. He further submits that even the provisions of Section 179 Cr.P.C. do not restrict the powers of any court to take cognizance of the offence. He relies upon the judgment of the Supreme Court in Trisuns Chemical Industry v. Rajesh Agarwal reported as 1999 8 SCC 686, especially to Para Nos. 11 and 13 to submit that the Court cannot be impaired by territorial jurisdiction during pre-cognizance stage. 6. Learned ASG further submits that this is a case of criminal conspiracy which is a continuing offence and continues to subsist and committed wherever one of the conspirators does an act or series of acts. In this regard, he relies upon the judgment of the Supreme Court in Ajay Aggarwal v. Union of India Ors. reported in (1993) 3 SCC 609 , specifically to Para 25 wherein it was held that so lon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arts from the conspiracy to receipt of undisclosed income and extends to concealing such income from the returns of the respondents and concertedly evading and deflecting the authorities, including by way of the statements given under Section 131 (1A) of the I.T. Act within the territory of Delhi. Learned ASG contends that the respondents, in pursuance of the criminal conspiracy, gave misleading statements to the petitioner authority and as it is an admitted position of law that the overt acts committed in pursuance of the conspiracy would form part of the same transaction, the said giving of statements to the petitioner authority in the present case would form part of the same transaction, thus invoking the territorial jurisdiction of Courts of Delhi. 11. Learned ASG relies upon the judgment of the Supreme Court rendered in Asit Bhattacharjee v. Hanuman Prasad Ojha Ors. reported in (2007) 5 SCC 786 wherein it was held that where a part of cause of action has arisen, the police station concerned situated within the jurisdiction of the Magistrate empowered to take cognizance under Section 190(1) Cr.P.C., will have the jurisdiction to make investigation. On this basis, Mr. Raju submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there would also be a risk of the second Court coming to a different conclusion from that of the first Court. 16. On this basis, Mr. Raju submits that the acts of criminal conspiracy and willful evasion of tax committed by the accused respondents extended to the local area of the NCT of Delhi by way of statements given in concert by the Respondent Nos. 1, 2 and 3 in order to evade and deflect the Tax Authorities and thereby, giving the Courts in Delhi the territorial jurisdiction over the offences alleged in the complaint of the petitioner. 17. On the issue of maintainability, Mr. Raju draws support from the judgment in Prabhu Chawla Vs. State of Rajasthan Another reported in (2016) 16 SCC 30 wherein the Supreme Court made it clear that since Section 397 Cr.P.C. is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under Section 482 Cr.P.C. only to petty interlocutory orders, which is wholly unwarranted. On this basis, learned ASG submits that the present petition filed under Section 482 of the Cr.P.C. is maintainable regardless of the availability of remedy under Section 397 Cr.P.C. 18. Thus, on the basis of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 482 Cr.P.C., learned senior counsel had relied and read out the relevant paras from the following judgments:- a) Amit Kapoor Vs. Ramesh Chander (2012) 9 SCC 460 Para 20 and 21. b) Madhu Limaye Vs. The State of Maharashtra (1977) 4 SCC 551 Para 8 to 10. c) Neeharika Infrastructure (O) Ltd. Vs. State of Maharashtra 2021 SCC OnLine SC 315 Para 11, 34, 36 to 41, 58, 59, 63 and 77. 23. Learned Senior Counsel directly attacked the contention laid on behalf of the petitioner that learned ACMM should have taken the cognizance and then decided the aspect of territorial jurisdiction of the present complaint or rather an inquiry for the said purpose needs to be conducted, and submits that the same is absolutely erroneous and the inquiry for the said purpose was duly conducted by the learned ACMM while at the stage of taking cognizance of the present complaint. Learned Senior Counsel further invites attention of this Court to page 5 of the impugned order to submit that the learned ACMM had decided the issue of cognizance after conducting a proper inquiry from the concerned officials of the complainant. 24. Learned Senior Counsel further submitted that the learned ACMM was also cognizant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sider the question of jurisdiction at the stage of inquiry. He submits that Section 179 Cr.P.C enables and empowers the learned MM to conduct an inquiry on the question of jurisdiction to ascertain as to whether any offence or its consequence had ensued within the local limits of its territorial jurisdiction. He further brings the attention of this Court to Para 14 of the said judgement wherein it was held that the Magistrate is empowered to consider the question of jurisdiction at the stage of inquiry and trial. 27. Learned Senior Counsel also submits that the petitioner is actually pursuing the present complaint as a proxy litigation on behalf of the Enforcement Directorate despite there being no predicate offence on which ED can take action against the respondents. This is despite the fact that the ED itself was restrained by the Supreme Court against initiating any coercive action. 28. Learned Senior Counsel next argues that mere making of statements cannot be said to be part of the conspiracy by drawing analogy with the statements so made under Section 164 Cr.P.C. He submits that the learned ACMM had himself clearly understood that the statements so made by the respondent Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal Courts at Delhi of the offences alleged to have been committed in Chhattisgarh. Learned Senior Counsel contends that the same was examined in detail by the learned ACMM while passing the impugned order and any action thereagainst would tantamount to taking away the discretion which was rightly exercised by proper application of mind and applying the Local Jurisdiction Rule, being the thumb rule of jurisdiction , which could not be the intent of the judgment in Trisuns Chemical Industry (supra). Further that, rightly or wrongly, the learned ACMM had himself bifurcated the offences on the basis of jurisdiction, for which power and discretion is statutorily conferred, as envisaged under the Code. 33. Learned Senior Counsel further submits that the offences alleged against the respondents are under the Income Tax Act and therefore, the offences, if any, give rise to different causes of action and separate set of offences committed by different individuals could not be clubbed to become part of the assessment proceedings or the conspiracy. Learned Senior Counsel further submits that allegation of conspiracy is wrong in its inception as all the transactions are independent in their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat even as per Section 201 and the entire conspectus of the Chapter-XIV of the Cr.P.C., it is the discretion which is bestowed upon the learned MM to try and take cognizance of the offences which further also provides that the learned MM should mandatorily return it, to be presented before the proper court, if there is lack of jurisdiction. Thus, the learned MM had rightly done so by returning the complaint and not dismissing it. The petitioner has been unable to show that they are remediless in such a situation. 38. Learned Senior Counsel further points out that the present complaint was filed on 11.03.2021 under the alleged sections based upon which the ED has also registered an ECIR under the Prevention of Money Laundering Act, 2002 (hereinafter referred as PMLA ). Learned Senior Counsel specifically points out to this Court that there is no offence under the Income Tax Act which is Scheduled Offence under the PMLA and the entire edifice of the PMLA proceedings against Respondent Nos. 1 and 2, is based only upon section 120B of IPC. Learned Senior Counsel further submits that without any scheduled offence being committed, offence under section 120B IPC cannot stand. He submits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Mohit Mathur, learned Senior Counsel submits that there is a clear dichotomy drawn out in the complaint itself as the involvement of the respondent No. 4 does not figure in the complaint at all except the allegation against the respondent No. 4 for the offences under section 278 of I.T. Act read with section 120B IPC. The said provision is extracted hereunder:- 278. Abetment of false return, etc. If a person abets or induces in any manner another person to make and deliver an account or a statement or declaration relating to 6[any income or any fringe benefits chargeable to tax] which is false and which he either knows to be false or does not believe to be true or to commit an offence under sub-section (1) of section 276C, he shall be punishable, (i) in a case where the amount of tax, penalty or interest which would have been evaded, if the declaration, account or statement had been accepted as true, or which is wilfully attempted to be evaded, exceeds 7 [twenty-five hundred thousand rupees], with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine; (ii) in any other case, with rigorous imprisonment for a te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the respondent Nos. 1 to 3 in not filing the returns. He further submits that to re-create the offence, the petitioners have enumerated all the other offences qua the respondent Nos. 1 to 3 and the learned Trial Court has analysed and decided one part of the act as completed and as regards to the respondent No. 4, the learned Trial Court cannot take the cognizance of section 278 I.T. Act and should have tried separately. On this, he drew the attention of this Court to section 218 Cr.P.C. The same is extracted hereunder:- 218. Separate charges for distinct offences. (1) For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately: Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be prejudiced thereby, the Magistrate may try together all or any number of the charges framed against such person. (2) Nothing in sub-section (1) shall affect the operation of the provisions of sections 219, 220, 221 and 223. 46. Mr. Mathur, learned Senior Counsel submits that the learned Trial Court took cognizance of certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002 initiated on the basis of Scheduled offences that form a part of the Ct. Case No. 1183 of 2022. By way of the Order dated 18.07.2023, the Hon ble Supreme Court held as follows:- On hearing learned counsel for the parties it transpires that the complaints have been returned, the income tax authorities having taken that to a further Court in appeal and there being any absence of stay, apart from the order already passed of no coercive action, the concerned respondent authorities must stay their hands in all manner. Ordered accordingly. On our query of learned ASG, we clarify that if the stay is obtained qua that order, it open to the respondents to move this Court for obtaining appropriate order. 51. Mr. Mathur, learned Senior Counsel submits that when the Supreme Court in Honnaiah (Supra) has granted any third party to exercise the option of revision, in the present case, the petitioner despite being the complainant, instead of invoking the revisional powers has approached this Court for stay of the order of the learned Trial Court, which is per se not maintainable. 52. Learned Senior Counsel submits that jurisdiction cannot be assumed to have been conferred in Delhi merely on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court. 57. Mr. Tyagi, learned counsel submits that the allegations against the respondent No. 5 is that, the illegal money earned was collected and handed over by respondent No. 5 to the respondent Nos. 1 to 3. He further makes it clear by submitting that the respondent No. 5 was not earning any income from that. 58. Learned counsel submits the only allegation qua the respondent No. 5 is recorded in paragraph 5 of the impugned order dated 06.04.2022. The same is extracted hereunder:- 5. That it was found that accused no. 4 to 8, were (being friends/aides to Tuteja Group/Family), managing the collection and distribution of unaccounted cash. 59. Mr. Tyagi, learned counsel refers to para 81 of the Complaint containing the allegations and sections invoked against respondent No. 5. The same is extracted hereunder:- 81 further, the said offences have been abetted and facilitated by Anwar Dhebar, Nitesh Purohit, Vikas A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 120B IPC cannot co-exist for the reason that the ingredients of offence under Section 278 IT Act is one of inducement, whereas the ingredient of offence under Section 120-B IPC is of conspiracy, which are two distinct offences having no co-relation. 67. Mr. P. Roychaudhuri draws the attention of this Court to Memo of Parties and submits that the complaint was instituted by Income Tax Office through Deputy Director of Income Tax (hereinafter referred to as DDIT ) obtaining prior permission of competent authority. The affidavit was filed by the Additional Director of Income Tax (Investigation) rather than DDIT, who is the competent authority. Learned counsel refers to the first Stay Application CRL. M.A. 10323/2023 and submits that the petitioner prayed for the stay of the impugned part of the order dated 06.04.2023. He further submits that the petitioner has moved another identical Stay Application CRL. M.A. 19314/2023, which is impermissible in law as already notice has been issued in CRL. M.A. 10323/2023 The three ingredients of stay application are prima facie case, balance of convenience, irreparable loss or injury caused to the petitioner. On this, he submits that nothing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the proceedings, the learned ACMM cannot, in abhorrent subordination, proceed further and take any decision till the present case has been finally decided by this court. 74. Learned counsel submits for the sake of argument that even if all the facts in the complaint are assumed against the respondents herein, there is no prejudice caused to the prosecution and there is no cause or requirement to pass any orders in the present application. 75. Mr. Kumar refers to the order dated 18.07.2023 passed by the Supreme Court wherein the petitioner authority was directed to stay their hands in all manner as no stay had been granted of the order returning the complaint, impugned herein and in fact, a protection order was passed in favor of the respondents herein. It was further noted that the Supreme Court itself had permitted the predicate agency i.e., the Income Tax Department to move an application for stay in the present case. He further submits that the aforesaid order of the Supreme Court relied upon by the applicant/petitioner in its stay application, is in regard to the challenge made by the Respondent no. 1 and 2 against the PMLA proceedings against them. Therefore, he submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the allegations made in the complaint. Looking at it factually, the respondent no. 10 is not concerned with the statements given by the respondent nos. 1 to 3 or with the filing, preparation or verification of the income tax returns by them individually, to be even associated with the alleged offence of conspiracy, and on this basis, submits that the complaint is very cryptic on this aspect. 79. Learned counsel refers to the complaint to point out that the two other groups i.e. Bhatia Group and one Sh. Vivek Dhand (Retd. IAS, posted as RERA Chairman) along with their accomplices have been dealt with separately on the aspect of prosecution by sanctioning authority, in that, they have been centralized under section 127 of I.T. Act to Central Circle-08, New Delhi, except the cases of Sh. Amalok Bhatia, Sh. Bhupendra Pal Singh Bhatia, Sh. Prince Bhatia and Sh. Vikas Aggarwal alias Subbu (an accomplice) which have been centralized to Central Circles, Bilaspur and Raipur. On this basis, he questions the very basis of the bifurcation of the complaints and their jurisdiction against the accused persons, who are said to be allegedly working in deep cahoots with each other. He further subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tting and facilitating the said accused persons, is dated back to 2010 and there is no whisper as to how the allegations against respondent no. 10 forms part of the same transaction forming an offence of conspiracy, except a very cryptic mention of the allegation that all the accused persons worked in cahoots with each other, in the said complaint. 85. Mr. Kumar questions the validity and legality of the notification of the CBDT SO 2914(E) relied upon by the petitioner wherein it is stated that the Principal Director/Director or Income Tax (Investigation), Delhi-1 or Principal Director/Director of Income Tax (Investigation), Delhi-2 can exercise Pan India jurisdiction with regard to Chapter XXI penalties imposable and Chapter XXII offences and prosecution, to submit that the entire basis of the concept of jurisdictions of the courts, as provided under the Code of Criminal Procedure, 1973 is sought to be amended by the said notification. He further submits that a notification cannot override the fundamental provision that the territoriality has to be established for the court to try the cases before it, as provided by the Cr.P.C. 86. He further draws attention of this Court to the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I.T. Act to address the issue of jurisdiction. The same is extracted hereunder:- 280B. Offences triable by Special Court. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), (a) the offences punishable under this Chapter shall be triable only by the Special Court, if so designated, for the area or areas or for cases or class or group of cases, as the case may be, in which the offence has been committed: Provided that a court competent to try offences under section 292, (i) which has been designated as a Special Court under this section, shall continue to try the offences before it or offences arising under this Act after such designation; (ii) which has not been designated as a Special Court may continue to try such offence pending before it till its disposal; (b) a Special Court may, upon a complaint made by an authority authorised in this behalf under this Act take cognizance of the offence for which the accused is committed for trial. 90. Mr. Krishnan, learned Senior Counsel submits that the various offences alleged under I.T. Act and sought to be tried in Delhi, are all in respect of returns filed in Chhattisgarh. It is submitted that the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty or whether there is a reasonable connection with the official duty. 93. Learned Senior Counsel submits that the power under Article 226/227 of the Constitution of India and section 482 Cr.P.C., does not empower or entitle this Court to usurp the jurisdiction of the learned Sessions Court, which is in seisin of the revision unless there is an extraordinary situation. He further submits that law does not countenance parallel proceedings being conducted simultaneously before the lower Courts and the High Court. 94. That apart learned Senior Counsel refers to the further contentions raised in the application seeking impleadment. REBUTTAL OF THE PETITIONER 95. Mr. Zoheb Hossain, learned counsel for petitioner, in rebuttal, had handed over the bench, detailed written submissions on behalf of the petitioner. In pursuance thereof, learned counsel had sought permission to restrict his arguments for the adjudication of the stay applications filed on behalf of the petitioner. Accordingly permitted, he started his contentions by reiterating the arguments already made with supplanting them with additional arguments which are as follows:- 95.1 With regard to the contention of the Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasoning, the court having jurisdiction to try the offences committed in pursuance of the conspiracy, can try the offence of conspiracy even if it was committed outside its jurisdiction. We therefore hold that the order under appeal is correct and, accordingly, dismiss this appeal. 95.3 He submits that the case and assessment records, all evidences including the records of statements of the Accused No. 1-3 are in Delhi. The office of the concerned Investigating Officer who would be required to depose before Court is located in Delhi. If the Petitioner is now required to present a Complaint before a Court of another jurisdiction and present all evidence there and thereafter, this Hon ble Court allows the present petition, that may lead to a situation where the petitioner is required to unnecessarily present evidence in two different Courts in two different locations. The costs associated with the same would have to unnecessarily be borne by the public. Hence, it is submitted that balance of convenience would lie in favour of granting of stay on the impugned order. Further, if such a stay on the operation of impugned order is not granted, irreparable injury maybe caused to the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The King AIR (1949) PC 117; Ronald Wood Mathams v. State Of West Bengal, AIR 1954 SCC at Para 11; Kalicharan Mahapatra v. State of Orissa, (1998) 6 SCC 411 at Para 13; Army Headquarters v. CBI, (2012) 6 SCC 228 at Para 42; Choudhary Parveen Sultana vs. State of West Bengal Anr., (2009) 3 SCC 398 at Paras 18-21; State of Bihar Anr. vs. P.P. Sharma (1992) Supp 1 SCC 222 at Paras 64-65; Punjab State Warehousing Corporation vs. Bhushan Chander (2016) 13 SCC 44 at Para 20). ANALYSIS AND CONCLUSION: 97. This court has heard the arguments addressed by Mr. S.V. Raju, learned ASG for the petitioner, Mr. Mukul Rohatgi, Mr. Dayan Krishnan, Mr. N. Hariharan, Mr. Mohit Mathur, learned Senior Counsel as well as other learned counsels for the remaining respondents. With their able assistance, this Court was also taken through the records of the present petition. 98. With the consent of parties, vide the Order dated 31.07.2023, only the arguments in respect of the stay application are being considered. The said order dated 31.07.2023 is extracted hereunder: 1. Mr. S.V. Raju, learned ASG requests that the application seeking urgent stay of the order dated 06.04.2023 in respect of the challenge so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intervention by the prospective accused at pre-summoning stage in a complaint case before Ld. MM is well settled by series of the judgment of the Hon'ble Supreme Court. In case titled Chandra Deo Singh v. Prokash Chandra, (1964) 1 SCR 639 the Hon'ble Supreme Court has held as under; 7. Taking the first ground, it seems to us clear from the entire scheme of Ch. XVI of the Code of Criminal Procedure that an accused person does not come into the picture at all till process is issued . This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. It would follow from this, therefore, that it would not be open to the Magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued; nor can he examine any witnesses at the instance of such a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under sections 200 and 202, and the only stage of dismissal of the complaint arises under section 203 of the Code at which stage the accused has no role to play , therefore, the question of the accused on receipt of summons approaching the court and making an application for dismissal of the complaint under section 203 of the Code for a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage. 29. In Meenakshi Jain v. State, (2012) 194 DLT 745 the Hon'ble Supreme Court has again held that so far as the legal position is concerned, the accused/respondent or the prospective accused has no right of participation in the proceedings at the pre-summoning stage or till the time he is summoned. He has no locus standi to assail the order passed by the learned Magistrate. 102. Upon a scrutiny and appreciation of the law as laid down by the aforesaid judgments, it is clear that so far as an accused person is concerned, till the stage when the accused has been summoned by the Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Talwar v. CBI Anr. Review Petition (Crl.) No. 85 of 2012, M/s Cheminova India Limited Anr. v. State of Punjab Ors. Crl. Appeal no.749/2021 decided on 04.08.2021, Chandra Deo Singh v. Prokash Chandra Bose Anr. 1963 AIR 1430 and A-One Granites v. State of UP Ors. Appeal (civil) 6459 of 1998 etc. to buttress the submissions made. Complainant submitted that the application be dismissed at the threshold. Arguments on this application were heard at length. Entire material placed on record had been perused. It is neither necessary nor desirable to delve into each and every issue argued by the counsels. Moreover, it is also not profitable to discuss the plethora of judgments cited by the rival counsels for the parties. At this juncture, it is apposite to advert to the following observation of Apex Court in State of Bihar Anr. v. P. P. Sharma (supra):- ........Simply because the investigating officer, while acting bona fide rules out certain documents as irrelevant, it is no ground to assume that the acted mala fide. The police-report submitted by the investing officer has to pass through the judicial scrutiny of a Magistrate at the stage of taking cognisance. Although the accused person h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome the embargo or the bar created by the ratio laid down in the aforesaid judgements. If this Court were to follow the ratio in the judgement of Supreme Court in Chandra Deo Singh (Supra), the locus of the respondents/accused persons itself becomes questionable and therefore, there could not have been any occasion for the learned ACMM to have considered any arguments at all. This is not to say that the learned ACMM was bereft of any power to prima facie consider the contents of the complaint and apply his mind to form an opinion whether a case is made out or not for the issuance of process. However, in the present case, the learned ACMM appears to have overlooked the aforesaid ratio. 106. Though the learned ACMM appears to have applied his mind, however, seems to have been misdirected to reach definitive conclusions on issues like territorial jurisdiction and conspiracy, which in the opinion of this Court could not have been reached without there being evidence on such aspects. This Court has cursorily examined Section 177 Cr.P.C through till Section 187 Cr.P.C., and observes that the Cr.P.C. itself provides for varied places of jurisdiction in varied kind of situations depending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertaining the said application and retaining the arguments on such objections and considering the same vide the impugned order, acted with material irregularity necessitating entertaining of the present petition under section 482 Cr.P.C. (ii) Whether the issue of conspiracy is an issue of fact which can be proved or disproved only during trial at the time of evidence? 108. Regarding the issue of conspiracy as argued at length by all the learned Senior Counsel, this Court observes that the learned ACMM had yet again heard arguments at great lengths to make some observations which in the opinion of this Court were definitive. 109. In order to appreciate this issue, this Court examines the judgement of the Supreme Court in Purushottamdas Dalmia (supra), and the relevant paras in relation to the dispute at hand, are extracted hereunder: - 10. The jurisdiction of the Calcutta High Court to try an offence of criminal conspiracy under Section 120-B IPC, is not disputed. It is also not disputed that the overt acts committed in pursuance of the conspiracy were committed in the course of the same transaction which embraced the conspiracy and the acts done under it. It is however contended fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad to be established by the prosecution before he could be convicted of the offence with which he had been charged. That fact was found against the prosecution and having regard to the observations of Lord MacDermott quoted above, could not be proved against Pritam Singh Lohara in any further proceedings between the Crown and him. 12. In these circumstances, unless the provisions of the Code of Criminal Procedure admit of no other construction than the one placed upon them by the Calcutta High Court, they should be construed to give jurisdiction to the court trying the offence of criminal conspiracy to try all the overt acts committed in pursuance of that conspiracy. We do not find any compelling reasons in support of the view expressed by the Calcutta High Court. 110. It can be discerned from the ratio laid down by the aforesaid judgement that the conspiracy is an issue of fact and can be proved or disproved by the parties by leading evidence during trial and cannot be ascertained merely by appreciating either documents or arguments and therefore, no definitive conclusion on such issue can be reached by any Court at the stage of taking cognizance. The petitioner in the present cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the offences was to be taken. In case such an order is made to stand, then at the stage of taking cognizance, the accused by mere arguments would get an opportunity to show that no such conspiracy was hatched, that too without any evidence. This would be contrary not only to the aforesaid judgement in Mahua Moitra (supra) but also against all cannons of law and procedure. It is trite that conspiracy is an issue of fact which can be proved or disproved only during trial. 113. In view of the above, this Court is of the considered opinion that the definitive conclusion reached by the learned Magistrate in respect of issue (ii), that is, the alleged conspiracy in the present case, is contrary to the law and prima facie unsustainable. 114. Another profound error in the arguments rendered on behalf of respondents no. 1, 2 and 3 is the submission that since there was no territorial jurisdiction to adjudicate upon those offences arising under Sections 276C(1)/278 read with Sections 278B/278E of the Income Tax Act, 1961 and Sections 120B/199/200/204 of the Indian Penal Code, 1860 and thus, there was no prejudice caused to the Petitioner/Complainant since that portion of the complaint in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner have not been concluded to be false. He has further contended that only after conclusion of assessment and determination of evasion of tax, the concerned Income Tax Authorities could have arrived to the conclusion whether the said statements are false or not. He has further contended that the said proceedings have not been concluded and thus, invoking of Section 191 IPC is premature. Therefore, at this stage, there is no lawful occasion for the ld. Trial Court to assume that the offence u/s. 191 IPC has been committed by the petitioner. With these submissions, he has sought setting aside of the impugned order. (emphasis supplied) 115. A party cannot be permitted to approbate and reprobate in the same breath or take mutually destructive pleas and it appears that the respondents are taking varying stands according to their own convenience which is impermissible in law. 116. That at the closure of arguments in respect of the stay application, Mr. Hariharan, learned Senior Counsel had apprised that an application has been filed on behalf of respondent no. 1 to place on record the judgement dated 29.11.2023 of the Supreme Court in Criminal Appeal No. 2779 of 2023 captioned as Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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