TaxTMI 
TaxTMI 
2021 (5) TMI 982
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....tion 200 of Cr.P.C. In the said complaint, the complainant alleged that the petitioner has under declared the outward taxable turnover and accordingly, paid less tax than he was liable to pay for the period starting from August, 2017 onwards. It is further stated that sizable demand of Rs. 19.74 Crores (rounded off) inclusive of tax, interest and penalty has been raised against the petitioner out of which only an amount of Rs. 1.18 Crores (rounded off) could be recovered. Remaining amount of Rs. 18.55 Crores (rounded off) still remains unpaid. Notices were issued to the purchasing dealers of the petitioner, who conveyed to the department that they had already paid their taxes to the petitioner for the purchases made by them from the petitioner. The complainant therefore alleged that the petitioner though had collected the taxes from the purchasing dealers, had not deposited the same in the Government revenue. The petitioner had thus committed offences punishable under Sections 132 of the SGST Act and 406 and 409 of IPC. The request, therefore, was made to the Magistrate to take cognizance of the said offences. 3. On 24.11.2020, the Sub-Divisional Magistrate, Bishalgarh ordered tha....
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.... (ii) The complainant had not previously approached the police by filing a complaint and that therefore, the Magistrate could not have directly sent the complaint for investigation. (iii) The order was passed mechancally and without application of mind. (iv) Counsel submitted that the offence alleged against the petitioner is one punishable under Section 132 of the SGST Act, which is the special statute. The general provisions of IPC in such a case cannot be invoked. 7. In support of his contentions, counsel for the petitioner has relied on following decisions: In case of Mohd. Yousuf vs. Smt. Afaq Jahan & anr., reported in 2006 AIR SCW 95, in order to highlight the difference between investigation that a Magistrate can order under Section 156(3) of Cr.P.C. as compared to one before to under Section 202(1) of Cr.P.C. On the basis of this decision, the counsel argued that once the Magistrate has taken cognizance of the offence alleged in the complaint, he thereafter cannot send the complaint for investigation by the police under Section 156(3) of the Code. Reliance was placed on the decision in case of State of Karnataka & anr. Vs. Pastor P. Raju, reported in 2006 AIR SCW 391....
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.... 482 of Cr.P.C. also cannot be entertained. In my opinion, this objection is not valid. Powers of the High Court under Section 482 of Cr.P.C. read with Articles 226 and 227 of the Constitution are sufficiently wide so as to examine the legality and correctness of an order passed by the Magistrate which adversely affects the petitioner. Even assuming that a revision petition against the impugned order of the Magistrate is not maintainable, that would not preclude the High Court from examining the legality of the order under Section 482 of Cr.P.C. The reliance on the decision in case of HDFC Securities case (supra) is misplaced. In the said case of the facts were entirely different. It was the case in which the Magistrate had straightway called for investigation under Section 156(3) of Cr.P.C. upon receipt of the complaint upon which an FIR was registered against the accused. The accused approached the High Court even before the stage of issuance of process and challenged the order passed by the Magistrate under Section 156(3) of Cr.P.C. It was in this context observed that the stage of taking cognizance by the Magistrate would arise only after investigation report is filed before th....
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....ns which are made punishable with different sentences depending on the nature of the offence. Sub-Section (4) of Section 132 provides that notwithstanding anything contained in the Code of Criminal Procedure, all offences under the said Act, except those referred to in sub-Section (5) shall be non-cognizable and bailable. However, sub-Section (5) of Section 132 makes certain offences cognizable and non-bailable. Sub-Section (6) of Section 132 provides that a person shall not be prosecuted for any offence under the said Section except with the previous sanction of the Commissioner. 13. As noted, Section 132 of CGST Act provides punishment for certain offences related to the Goods and Service Tax related acts and omissions. However, it is not unknown that a certain act may fall within the said special penal statute at the same time may also have an element of an offence under IPC. The question whether the accused in such a situation can be made answerable only for the special statue offence or general offence also, has been examined by the Supreme Court earlier. 14. In case of Jayant and others vs. State of Madhya Pradesh, reported in (2021) 2 SCC 670, facts were that on a surprise....
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....s. Sanjay, reported in (2014) 9 SCC 772, also similar question came up for consideration. It was held: "72. From a close reading of the provisions of the MMDR Act and the offence defined under Section 378 IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State's possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, ....
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....t property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust". It can thus be seen that the offences punishable under Section 132 of CGST Act and those under Sections 406 and 409 of IPC operate in different fields. In a given case an act or omission on part of the dealer may form offence only under Section 132 of CGST Act. But in a given case where the ingredients of Section 405 of IPC are satisfied, the action can as well amount to offences punishable under Sections 406 and 409 of IPC. However, a word of caution would not be misplaced. The tax administration of the State should not invoke IPC provisions without application of mind in every case. In the present case, however, no arguments are made on the basis that even if the allegations in the complaint are taken on the face value, offence of criminal breach of trust is not made out. 18. I also do not find that the Magistrate can be said to have passed....
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....a Judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings. It is the condition precedent to the initiation of proceedings by the Magistrate. The court noticed that the word "cognizance" is a word of somewhat indefinite import and it is perhaps not always used in exactly the same sense. 10. After referring to the observations in Emperor v. Sourindra Mohan Chuckerbutty it was stated by Das Gupta, J. in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee as follows: "What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a) of the Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter-proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for th....
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....ode. It is clear, however, that Chapter XVI would come into play only if the Magistrate had taken cognizance of an offence on the complaint filed before him, because Section 200 states that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of the filing of the complaint. We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word 'may' in Section 190 to mean 'must'. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate s....
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....ed his mind to the complaint filed on August 3, 1957, with a view to taking cognizance of an offence. The Additional District Magistrate passed on the complaint to Mr Thomas to deal with it. Mr Thomas seeing that cognizable offences were mentioned in the complaint did not apply his mind to it with a view to taking cognizance of any offence; on the contrary in his opinion it was a matter to be investigated by the police under Section 156(3) of the Code. The action of Mr Thomas comes within the observations of Mr Justice Das Gupta. In the circumstances, we do not think that the first contention on behalf of the appellants has any substance. 23. In case of Jamuna Singh and others vs. Bhadai Shah, reported in AIR 1964 SC 1541, it was observed as under: "12. Relying on the provisions in Section 190 of the Code that cognizance could be taken by the Magistrate on the report of the police officer the learned counsel for the appellants argued that when the Magistrate made the order on November 22, 1956 his intention was that he would take cognizance only after receipt of the report of the police officer and that cognizance should be held to have been taken only after that report was ac....
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.... therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself. As said earlier, in the case of a complaint regarding the commission of cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of Section 156(3)." 25. The question, however, is what amounts to the Magistrate taking cognizance of an offence for the purpose of Section 190 of Cr.P.C. This expression has not been defined under the Code of Criminal Procedure and the question whether in a given case the Magistrate can be said to have taken cognizance or not must be judged based on facts of the case. In case of Devarapall....
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....nce of an offence under Section 190(1)(a) of Cr.P.C., he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter, proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. These observations of Calcutta High Court were noted with approval by the Supreme Court in case of R.R. Chari vs. State of Uttar Pradesh (supra). 28. With this legal background, we may revert to the facts of the present case. We may recall that on the first instance when the complaint was placed before the learned Magistrate, on 27.11.2020, he recorded that he had perused the case record, received some of the documents which were ordered to be kept along with the case record. He thereupon stated - "Let the case be fixed for examination U/S 200 Cr.P.C. Fix 02.01.2021 examination U/S 200 Cr.P.C." 29. A perusal of this order dated 27.11.2020 would immediately show that the learned Magistrate had decided to examine the complainant or possibly the witnesses, if any, under Section 200 of Cr.P.C. on 02.01.2021. This he had de....