TaxTMI 
TaxTMI 
2016 (6) TMI 340
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....e sheet against the accused/petitioner Kunal Singh and co-accused persons Ratan Singh, Uma Kant, Harish Dhondiyal, S.K. Garg and Anil Kumar Jaiswal. The FIR in question was registered on 03.06.2012. At the relevant time, accused Kunal Singh was posted as Director (Investigation), Income Tax, Kanpur; accused Ratan Singh was posted as Addl. Director (Investigation), Income Tax, Noida, accused Uma Kant was posted as Asstt. Director (Investigation), Income Tax, Noida; accused Harish Dhondiyal was posted as Inspector, Income Tax, Noida; accused S.K. Garg was the Chairman, accused Pankaj Bajaj (now approver) was Managing Director of M/s Eldeco Group; accused Anil Kumar Dhanda was CFO of M/s Eldeco Infrastructure & Properties and accused Anil Kumar Jaiswal was Advocate & Tax Consultant. It was alleged that a raid was conduted by the Income Tax Department at different premises of M/s Eldeco Group of Companies in March, 2012 in which various documents were seized and bank lockers were sealed. Accused Pankaj Bajaj and S.K. Garg contacted accused Anil Kumar Jaiswal, Chartered Accountant to settle the matter with the Income Tax Department who had contacted accused Ratan Singh, Umakant and Hari....
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....ed is that the petitioner was having telephonic conversation and meetings with accused Pankaj Bajaj as the petitioner was instructed by his seniors not to harass him due to medical condition of his wife. On 31.05.2012, a sum of Rs. 30 lacs was paid to co-accused Ratan Singh by accused Pankaj Bajaj but no raid was affected on the said date nor any recovery was affected. On 03.06.2012, the CBI conducted raid at 14 premises at different locations and at the premises of the accused persons. The raid was conducted in a pre-planned manner and not on the basis of source information as indicated in the FIR in question. It is further argued that there is no demand of any bribe by the petitioner nor there is any evidence of its acceptance. The recovery alleged by the CBI is planted one. The finger prints on the bag were taken and were sent to CFSL, but no report was filed. On this point, learned counsel for the petitioner has relied upon judgment in the case of Banarsi Dass v. State of Haryana 2010 (4) SCC 450 in which it was observed that to constitute an offence of illegal gratification, demand of money and its voluntary acceptance by the accused is a sine qua non. It was also observed tha....
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....in the present case are missing which the prosecution is bound to prove fully. In support of this contention, judgments in the case of Musheer Khan @ Badhshah Khan and Anr. v. State of Madhya Pradesh (2010) 2 SCC 748; Nizam & others v. State of Rajasthan (2016) 1 SCC 550 and Banarsi Dass v. State of Haryana 2010 (4) SCC 450 have been relied upon in which it was observed that the prosecution is bound to prove its case beyond reasonable doubt and the chain of circumstances must be complete in every aspect in all the cases where case of the prosecution relies upon circumstantial evidence. 9. Next argument advanced is that at the time of framing the charge, the Court is required to evaluate the material and documents to find out if the facts disclose the existence of all the ingredients constituting the alleged offence. In support of this contention, judgments in the case of Union of India v. Prafulla Kumar Samal and Anr. (1979) 3 SCC 4; Niranjan Singh Karan Singh Punjabi & others v. Jitendra Bhimraj Bijja and others 1990 (4) SCC 76; State of Maharashtra v. Priya Sharan Maharaj and Ors. (1997) 4 SCC 393; Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) (2009) 6 SCC 605 an....
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....that Pankaj Bajaj has turned approver and in his statement, he has narrated the entire conspiracy and statement of Pankaj Bajaj can be appreciated only when he is cross-examined. It is further argued that at the time of framing the charge, the Court is not required to analyse the evidence relied upon by the prosecution but to see whether there is strong suspicion or not on the basis of material available. 12. The Senior Counsel for the petitioner has contended that the petitioner is having protection under Section 6A of the DSPE Act. This contention is not having any force inasmuch as said protection is no more available to a government servant on any designation he is holding. The Hon'ble Apex Court in Dr.Subramanian Swamy's case (supra) has categorically held the provision of Section 6A of the DSPE Act as unconstitutional and violative of Article 14 of the Constitution of India. Relevant para from the judgment is reproduced as under : "In view of our foregoing discussion, we hold that Section 6- A(1), which requires approval of the Central Government to conduct any inquiry or investigation into any offence alleged to have been committed under the PC Act, 1988 where such allega....
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....dence when raid was conducted by the CBI. When it has been shown prima facie that accused persons including the petitioner had been meeting each other, having telephonic conversations with each other and recovery of bribe money, a strong suspicion is raised against them and it would be sufficient to frame charge against them. So far the contention regarding admissibility of tape recorded conversation and other connecting factors are concerned, same are findings of fact and no comment on the same at this stage can be made. Such contentions are to be dealt with only at the time of conclusion of trial i.e. at the time of passing final judgment by the Trial Court. 17. Another plea raised by the petitioner is that the statement of co-accused Pankaj Bajaj who has now turned an approver cannot be relied upon and it cannot be used against the petitioner. There is no force in this contention of the petitioner inasmuch as it is shown on record that the statement of Pankaj Bajaj has been recorded before the learned Magistrate under Section 164 Cr.P.C. The certificate dated 04.10.2012 as required under the law has been given by the learned Magistrate regarding correctness of the statement ma....
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....dered opinion of this Court, no sanction under Section 197 Cr.P.C. was required in the present case as the offences alleged against the petitioner cannot be said to be done in the discharge of his official duties to claim the protection as provided under Section 197 Cr.P.C. 21. The Hon'ble Apex Court in the case of Shankara Co-op Housing Society Ltd. v. M. Prabhakar and Ors. AIR 2011 SC 2161 observed that : "The High Court in its writ jurisdiction, will not enquire into complicated questions of fact. The High Court also does not sit in appeal over the decision of an authority whose orders are challenged in the proceedings. The High Court can only see whether the authority concerned has acted with or without jurisdiction. The High Court can also act when there is an error of law apparent on the face of the record. The High Court can also interfere with such decision where there is no legal evidence before the authority concerned, or where the decision of the authority concerned is held to be perverse, i.e., a decision which no reasonable man could have arrived at on the basis of materials available on record. Where an enquiry into complicated questions of fact is necessary before ....