AI Drafter 
TaxTMI 
TaxTMI 
2015 (1) TMI 1371
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....one of the accused in the FIR being C.R.No.I37 of 2013 registered with D.C.B. Police Station, Surat for the offences punishable under Sections 213, 214, 217, 120B of the Indian Penal Code read with Sections 7, 8, 9, 12 and 13(1) of the Prevention of Corruption Act, 1988. That before registration of the said FIR, on 06.10.2013, an FIR came to be registered with Jahangirpura Police Station, Surat bearing C.R.No.I31 of 2013 for the offences punishable under Sections 376(2)(k)(f), 377, 354, 357, 342, 346, 143, 147, 148, 149, 506(2) and 120B of the Indian Penal Code on the basis of the complaint given by the victim against one Narayan alias Narayan Sai alias Mota Bhagwan, Hanuman (sadhak of Narayan Sai), Ganga Sadhika, resident of Gambhoi Ashram, Jamna Sadhika, resident of Gambhoi Ashram and 6 to 7 Sadhikas of Gambhoi Ashram. At this stage, it is relevant to note that present petitioner is not an accused for the offences registered vide C.R.No. I31 of 2013 before Jahangirpura Police Station, Surat. During the course of the investigation of C.R.No.I31 of 2013, the Investigating Officer seized 42 gunny bags on 27.10.2013 by preparing panchnama from the place of respondent No.2 herein i.e.....
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....ions Case No.141 of 2014. The said application is pending before the learned Sessions Court till today. It is the case of the petitioner that in the meantime, on 23.05.2014, the respondent No.1 herein submitted an application being Criminal Misc. Application No.1392 of 2014 under Section 132A of the Income Tax Act, 1961 (hereinafter referred to as 'the Act' for short) read with Sections 451 and 457 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') and prayed before the learned Sessions Court that necessary orders be passed under Sections 451 or 457 of the Code and thereby to handover all the 42 gunny bags containing documents, CPU, hard disk, C.D. and other articles etc. to the Income Tax Department, Surat or to the authorized officer under th provisions of the Act, who is entitled to take possession of the said 42 gunny bags containing documents etc. for the purpose of investigation. The petitioner herein submitted an application at Exh.8 in the said proceedings for joining him as a party. The said application was given by the petitioner on 04.06.2014 before the learned Sessions Court at Surat. It is the case of the petitioner that by way of order dat....
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....t to the FIR being C.R.I37 of 2013 and thereby committed grave error. Thus, the learned advocate would contend that the learned trial court has not given fair hearing to the petitioner. [3.2] Learned advocate for the petitioner further submitted that in the proceedings of the application given by the respondent No.1 under Section 451 read with Section 457 of the Code read with Section 132A of the Act, the petitioner preferred an application at Exh.8 for joining him as a party respondent and the learned Additional Sessions Judge, Surat, allowed the said application Exh.8 and thereby petitioner was joined as party in the said proceedings. Learned advocate for the petitioner relied upon the order dated 25.06.2014 passed below application Exh.8 and submitted that while allowing the said application, the learned Additional Sessions Judge observed that the application given by the Income Tax Department is in connection with the offence registered vide C.R.I37 of 2013, and if any order is to be passed in absence of the said person whose right is involved in the matter, it would be seriously prejudiced to the said third party accused and by making such observation, the petitioner was pe....
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....applicable to the case at a premature stage? 9. Whether the provisions of section 138 of IT Act which is subject to the satisfaction of the executive can be said to be overriding the expression under section 207 and section 377 of Gujarat Criminal Manual in respect of an accused of a criminal offence seeking copies of the documents before commencement of the trial from a Court?" [3.4] Learned advocate for the petitioner relied upon Section 207 of the Code and submitted that the learned Magistrate is bound to furnish to the accused, without any delay, copy of the police report, first information report, statement recorded under subsection (3) of section 161 of the Code, the confessions and statements, if any, recorded under section 164 and any other documents or relevant extract thereof forwarded to the Magistrate with the police report under subsection (5) of section 173 of the Code. Relying upon the said provisions, learned advocate for the petitioner would contend that the learned Magistrate has not complied with the aforesaid provisions of law and therefore the Investigating Officer and/or the concerned Court is required to supply the certified copy of the documents lying ....
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....ommissioner has recorded the satisfaction about exercise of powers under section 132A of the Act. Thus, in absence of satisfaction recorded by the concerned income tax authority, the application submitted by the officer of the Income Tax Department is premature. [3.9] The learned advocate for the petitioner would contend that the learned Sessions Court passed the impugned order on the basis of the submissions advanced on behalf of the learned Special Public Prosecutor that all the articles and documents lying in 42 gunny bags are not at all required by the prosecution to prove the case of rape against the accused persons. At this stage, learned advocate for the petitioner further contended that during the pendency of this petition, the learned Sessions Court has rejected the application given by the Income Tax Department for getting custody of Muddamal of the FIR being C.R.I37 of 2013. The said Muddamal is cash amount of Rs. 8.10 crore. Learned advocate for the petitioner referred to the order dated 16.01.2015 and pointed out that the said application is rejected by the learned Sessions Court because the learned Special Public Prosecutor has taken the objection in the said case ....
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....is nowhere mentioned in the said Panchnama. The learned Senior Counsel further contended that the Investigating Officer has seized 42 gunny bags during the course of investigation of the FIR being C.R.No.I31 of 2013 registered with Jahangirpura Police Station, Surat. In the said case the petitioner is not an accused. It is further contended that the said 42 gunny bags are Muddamal of C.R.No.I31 of 2013. The learned Senior Counsel further contended that the arguments canvassed by the learned advocate for the petitioner before the learned Sessions Court are accordingly dealt with by the learned Sessions Court while passing the impugned order. The learned Senior Counsel further referred to para 7 of the impugned order wherein the learned Sessions Court has recorded the contentions of the learned advocate for the petitioner. The learned Senior Counsel further submitted that the petitioner has not at all stated in the petition that though a particular contention was taken by him during the course of his submission, the learned Sessions Court has not considered the same while passing the impugned order and therefore from the impugned order it appears that the learned advocate for the pet....
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....rred to Section 132 of the Act, which provides for search and seizure and thereafter referred to the provisions of Section 132A and submitted that when the highest authority of the Income Tax Department has given the warrant of authorization on 07.05.2014 while exercising powers under section 132A(1) of the Act read with relevant rules to the concerned Income Tax Officer and when the said authorization is on the basis of the requisition and the requisition is not under challenge before this Court and when the Income Tax Department has exercised the powers in public interest, the learned Sessions Court has rightly handed over the custody of Muddamal 42 gunny bags to the respondent No.1 and thereby no error is committed by the learned Sessions Court. [4.5] The learned Senior Counsel further contended that it is settled position of law as to whether there was adequate material for the competent authority to form the required satisfaction either under Section 132 or under Section 132A of the Act is not a question which can be agitated by any assessee. Learned Senior Counsel further submitted that only upon receipt of requisitioned assets, the assessment of the block period of 6 year....
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....etitioner. [4.8] The learned Senior Counsel has relied upon the decision of this Court in the case of Deputy Director of Income Tax (Investigation) v. State of Gujarat & Anr. reported in [2009] 319 ITR 292. [4.9] The learned Senior Counsel further relied upon the decision rendered by this Court in the case of Sunil Vidhyasagar Gat & Anr. V. Shalini Verma, Officer, Deputy Director of Income Tax (Investigation) & Ors. reported in [2012] 347 ITR 1, and submitted that whether on the information in his possession the authority should exercise his powers under Section 132A must be decided by the authority and not by the High Court. The concerned authority under Section 132A alone is entrusted with the powers to administer it. Thus, the submission canvassed on behalf of the learned advocate for the petitioner with regard to the authorization is not required to be accepted by this Court. [4.10] The learned Senior Counsel further relied upon the orders passed by this Court in Special Criminal Application No.1009 of 2010, Criminal Revision Application No.333 of 2010 and Special Criminal Application No.2499 of 2013 and submitted that while passing the impugned order, the learned Sess....
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....o.I37 of 2013. The learned Public Prosecutor relied upon the provisions of Section 207 of the Code and more particularly the provisions of Section 207(v). The learned Public Prosecutor has further relied upon Section 165 of the Code and thereafter relied upon the decision of this Court in the case of Laxmansinh Dansinhji Gohil & Anr. V. State of Gujarat, reported in 1992 (2) G.L.H. 407 and submitted that the accused is entitled to get copies of documents on which the prosecution proposes to rely and which are sent to the Court under subsection (3) of Section 173 of the Code but the accused is not entitled to get the copies of the documents seized under Section 165 of the Code and on which the prosecution does not intend to rely to prove its case. The learned Public Prosecutor, therefore, submitted that in the present case it was declared by the Special Public Prosecutor before the learned Sessions Court that the documents and articles lying in 42 gunny bags are not required to prove the case of rape against the concerned accused persons of C.R.No.I31 of 2013 and therefore the copies of the said documents are not required to be given to the accused. The learned Public Prosecutor fur....
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....in view of the aforesaid undisputed facts, I would like to consider the arguments of the learned advocates of the concerned parties. Before dealing with the contentions and submissions of the learned advocates appearing for the respective parties, certain important provisions of law are required to be referred. [8] Section 451 of the Code reads as under: "451. Order for custody and disposal of property pending trial in certain cases.When any property is produced before any Criminal Court during an inquiry or trial, the court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay , or if it is otherwise expedient so to do, the court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of . Explanation: For the purposes of this section, "property" includes (a) Property of any kind or document which is produced before the court or which is in its custody. (b) Any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offenc....
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....or clause (c), as the case may be, to deliver such books of account, other documents or assets to the requisitioning officer. (2) On a requisition being made under subsection (1), the officer or authority referred to in clause (a) or clause (b) or clause (c), as the case may be, of that subsection shall deliver the books of account, other documents or assets to the requisitioning officer either forthwith or when such officer or authority is of the opinion that it is no longer necessary to retain the same in his or its custody. (3) Where any books of account, other documents or assetshave been delivered to the requisitioning officer, the provisions of subsections (4A) to (14) (both inclusive) of section 132 and section 132B shall, so far as may be, apply as if such books of account, other documents or assets had been seized under subsection (1) of section 132 by the requisitioning officer from the custody of the person referred to in clause (a) or clause (b) or clause (c), as the case may be, of subsection (1) of this section and as if for the words "the authorised officer" occurring in any of the aforesaid subsections (4A) to (14), the words "the requisitioning officer" were ....
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....ct read with Section 451 and/or 457 of the Code in connection with the offence registered at Jahangirpura Police Station vide C.R.No.I37 of 2013 and therefore when the petitioner is an accused of C.R.No.I37 of 2013, if any order is to be passed then it would be seriously prejudiced to the petitioner or third party. Thus, the said observations are prima facie not correct. From the record, it is clear that C.R.No.I37 of 2013 is not registered with Jahangirpura Police Station but it is registered with D.C.B. Police Station, Surat. Further, the application was given by the Income Tax Department for getting custody of Muddamal 42 gunny bags in connection with C.R.No.I31 of 2013 registered with Jahangirpura Police Station and not for the Muddamal of C.R.No.I37 of 2013 registered with D.C.B. Police Station. Further, the petitioner is not an accused in the FIR being C.R.No.I31 of 2013. Thus, it is clear that under the wrong belief, the petitioner was permitted to be joined as party respondent in the said proceedings. [12] It is also clear from the record that the learned Special Public Prosecutor has specifically submitted before the learned Sessions Court during the course of hearing o....
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....h of the following: ( (i) The police report; (ii) The first information report recorded under section 154: (iii) The statements recorded under subsection (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding there from any part in regard to which a request for such exclusion has been made by the police officer under subsection (6) of section 173. (iv) The confessions and statements, if any, recorded under section 164; (v) Any other document or relevant extract thereof forwarded to the Magistrate with the police report under subsection (5) of section 173: Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused: Provided further that if the Magistrate is satisfied that any document referred to in Clause (v) is Voluminous, he shall, instead of furnishing the accused with a copy thereof', direct that he will only be ....
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....er shall forward to the Magistrate along with the report( a) All documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) The statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witness. (6) If the police officer is of opinion that any part of any such statement is not relevant to the submatter of the proceeding or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate exclude that part from the copies to be granted to the accused and stating his reasons for making such request. (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in subsection (5). (8) Notwithstanding in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection (2) has been forwarded to the Magistrate and, where upon ....
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....I would like to refer to the decision rendered by this Court in Laxmansinh Dansinhji Gohil (Supra), wherein this Court in para 10A observed as under: "10A. Section 207 of the Code is very clear as to what documents and the police report the accused is entitled to as a matter of right. In Section 207 it is also made clear that the accused is required to be supplied the documents or relevant extracts of the documents forwarded to the Magistrate with the police report recorded under subsection (5) of Section 173. Documents contemplated in subsection (5) of Section 173 are the documents which the prosecution will rely on as documentary evidence on being legally proved under the Evidence Act. Muddamal articles even if they consist of documents are not required to be proved as per Evidence Act and read in evidence but they are identified as being seized from accused. If the articles from any incriminating circumstances, the same may be considered without going into the contents thereof. Muddamal articles, if consists of any documents, is it documentary evidence as referred in the Evidence Act? It is necessary to mention at this juncture that in case if the prosecution tried to prove t....
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....about the ingredients of Section 132A of the Act to the effect that the contents of 42 gunny bags relate to transactions not recorded in the books of account. It is further stated in the affidavit by the respondent No.1 that the authorization under Section 132A of the Act is not under challenge in the present proceedings. Thus, whether there was adequate material for the competent authority to form the required satisfaction either under Section 132 or Section 132A of the Act is not a question which can be agitated by any assessee. This Court in the decision rendered in the case of Sunil Vidhyasagar Gat (Supra) has held that "Whether on the information in his possession the authority should exercise his powers under Section 132A, must be decided by the authority and not by the High Court. The concerned authority under Section 132A alone is entrusted with the powers to administer it. If from the material disclosed it may be prima facie said that he had reason to believe that any of those conditions existed, it is not open to the High Court, exercising powers under Article 226 of the Constitution, to set aside the warrant of authorization on a reappraisal of the evidence." [22] Thi....
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....uthority to deliver such books of accounts, other documents or assets to the requisitioning officer. In exercise of this power, the order for requisitioning cash currency was passed. Learned Magistrate, therefore, correctly placed the currency notes at the disposal of the Income Tax Department for further process in terms of Income Tax Act including for assessment under Section 153, if so found necessary." [24] Similar view is also taken by this Court in Criminal Revision Application No.333 of 2013. In another case, this Court, vide order dated 24th April 2014 passed in Special Criminal Application No.2499 of 2013, observed in para 6 as under: "6 Having heard learned counsels for the parties, considering the provisions of Sections 132A(2), 132B and 153A of the Income Tax Act, 1961 and the case relied by the learned Senior Advocate for the applicant - Department, I am of the view that the impugned order is contrary to the provisions of the Income Tax Act, 1961 and currency notes seized by the police during the search and seizure in exercise of powers under Prohibition of Gambling Act, deserves to be handed over to the Income Tax Department. Accordingly, order dated 28.06.2013 ....
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....his Court that certified copies of the documents lying in 42 gunny bags are required to defend the case pending in pursuant to C.R.No.I37 of 2013. In the said petitions, it has been stated that because of the seized Muddamal, the Income Tax Department issued summons to the petitioner and when the time was sought for, the Income Tax officer refused to receive the application and recorded the statement as per their choice and desire. It has been further stated in the said petition that the Directorate of Enforcement Department moved an application to the Sessions Court, Surat to grant permission to record the statement of the petitioner and therefore the learned Special Court, Surat issued notice to the petitioner and coaccused. In this background, in the said petitions the petitioner submitted that unless and until the petitioner is furnished with the copies of the documents seized by the Investigating Officer in relation to the offence registered before the Jahangirpura Police Station being C.R.No.I31 of 2013, the petitioner is not in a position to give reply. Hence, necessity has arisen to prefer the said petitions. Thus, from the aforesaid averments made by the petitioner on oath....