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TMI Blog2024 (8) TMI 1070X X X X Extracts X X X X X X X X Extracts X X X X ..... Criminal Complaint Case No.276 of 2024, Union of India vs. Keshav Lal, under Section 53 and 3 of the Prohibition of Benami Property Transaction Act, 1988 as amended now and known as The Benami Transaction (Prohibition) Amendment Act, 2016 and the complaint dated 27.02.2024 filed by the respondents and entire proceedings of the Criminal Complaint Case, has filed the present application. 3. In brief, the facts of this case are that a search and seizure under Section 132 of the Income Tax Act, 1861 was conducted in the case of the applicant and his wife Indu Srivastava on 19.04.2017. During search, the wife of the applicant was found in the possession of cash amounting to Rs. 10,74,91,000/- (Rupees Ten Crores Seventy Four Lakhs and Ninety One ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome Tax (Investigation) U.P. (West) & Uttarakhand issued sanction order dated 30.01.2024 in the most mechanical and perverse manner on the basis of aforesaid sanction order dated 30.01.2024. The impugned complaint dated 27.02.2024 has been filed against the applicant. 6. Learned counsel for the applicant submits that the impugned summoning order dated 27.02.2024 is perverse and suffers from total non-application of mind. It is unseasoned and cryptic order. It is submitted that the proceedings under PBPT Act, which were initiated against the applicant solely on the basis of seizure of subject cash during income tax search against the wife of the applicant, could not have been initiated against the applicant in view of order dated 15.12.2023 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PBPT Act. He asserts that the seized amount is a benami property. No interference is required. He has drawn attention of this Court towards Section 67 of the PBPT Act shall have an overriding effect. 9. Perused the record. 10. Hon'ble Supreme Court of India in the case of Lalankumar Singh (supra) has specifically held in paragraph 38 that the order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. Paragraph 38 of Lalankumar Singh (supra) is being quoted hereunder:- "38. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thinks that it is unlikely to result in a conviction. 53. However, the words "sufficient ground for proceeding" appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect." 11. Hon'ble Supreme Court of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch constitute offence, there has to be definite application of mind as to whether allegation in the complaint would constitute violation of law so as to call a person to appear before the criminal court. Relevant paragraph 20 is reproduced as under:- "20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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