TaxTMI 
TaxTMI 
2026 (6) TMI 508
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....tioners and the respondent will be referred to as accused and complainant respectively. 3. A vignette of the facts leading to the institution of these two criminal original petitions would suffice: 3.1 From the search conducted by the complainant in respect of one Southern Agrifurane Industries Pvt. Ltd. at Myalpore, Chennai, it came to light that the said assessee had inflated their bottle purchases by obtaining bogus invoices of various firms and two such firms were the accused. The modus operandi that was found out by the complainant was that after receipt of payment, the accused returned the corresponding amount by cash after deducting their commission for providing bogus bills. 3.2 Hence, the complainant conducted a search on the accused on 15.06.2022 and after complying with the other required formalities as required under the Income Tax Act, 1961, (for short "the IT Act"), including issuance of a show cause notice to the accused, which was not responded to, and getting sanction of the Principal Commissioner of Income Tax under Section 279(1) of the IT Act for prosecuting the accused, lodged complaints against the accused before the Trial Court under Sections 277A an....
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....come Tax Department; further, in the event of such a procedure taken recourse to, it will amount to conducting a pre-trial prior to taking cognizance; viewed from that angle, much significance or importance need not be attached to the first proviso to Section 223(1) of the BNSS and hence, the impugned adjudications do not warrant interference. 7. In reply to the counter submission made by Ms. Sheela, Mr. Abudu Kumar Rajaratnam, learned Amicus Curiae, contended that when the language in the statute is plain, clear, unequivocal and unambiguous leaving no scope for interpretation, the Court cannot read into what is stated in the statute and in the guise of interpretation, the Court cannot legislate. In this regard, he placed reliance on the judgment of the Supreme Court in B. Premanand vs. Mohan Koikal [(2011) 4 SCC 266]. In other words, according to him, when the first proviso to Section 223(1) of the BNSS very specifically provides for affording an opportunity of being heard before taking cognizance, the Trial Court ought not to have taken cognizance of the offences by giving a complete and convenient go-by to that procedure. According to the learned Amicus Curiae, the date of ta....
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....e learned Amicus Curiae for the accused, in which, the complaint arose under the Prevention of Money Laundering Act, 2002, the Supreme Court had an occasion to deal with the first proviso to Section 223(1) of the BNSS. In the said judgment, the Supreme Court, by a terse order, set aside the impugned order of the Enforcement Directorate on the sole ground of non-compliance of the first proviso to Section 223(1) of the BNSS, however, without expressing any opinion on the merits of the complaint. To be noted, as already alluded to above, though the said case arose under the PMLA, what has to be taken note of by this Court is, the requirement of compliance of the first proviso to Section 223(1). 15. The view taken by the Supreme Court in Kushal Kumar Agarwal, supra, was followed in Kaberi Dey, supra, and Sashidhar Jagdishan, supra, by the Calcutta and Bombay High Courts respectively, albeit the complaints in both the said cases arose from the BNS, 2023. 16. Next, coming to the submission of Ms. Sheela that the first proviso to Section 223(1) of the BNSS does not deserve much weightage to be given, the same deserves to be stated only to be rejected, for, the vires of the said....
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....s of the BNSS would be applicable in the instant case as the investigation had commenced as early as on 15.06.2022, i.e., prior to kicking in of the BNSS and further, even the sanction for prosecution under the Income Tax Act was obtained on 28.03.2024. In order to ascertain whether the provisions of Cr.P.C. or the BNSS would apply in the instant case, this Court is guided by Section 531 of the BNSS. As per Section 531 of the BNSS, if, before the date on which BNSS came into force (i.e. 01.07.2024), there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Cr.P.C., as if the BNSS had not come into force. 21. At this juncture, it will be useful to allude to Section 531 of the BNSS, which reads as under: "531. Repeal and savings.- (1) The Criminal Procedure Code, 1973 (2 of 1974) is hereby repealed. (2) Notwithstanding such repeal- (a) if, immediately before the date on which this Sanhita comes into force, there is any appeal, application, trial, inquiry or in....
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....consideration of the material collected by the prosecution, that is mentioned in the charge-sheet for the purpose of trying the accused. This has to be understood in terms of Section 2(g) CrPC, which defines an inquiry as follows: "2. (g) 'inquiry' means every inquiry, other than a trial, conducted under this Code by a Magistrate or court." 28. In State of U.P. v. Lakshmi Brahman, (1983) 2 SCC 372, this Court held that from the stage of filing of charge-sheet to ensuring the compliance with the provision of Section 207 CrPC, the court is only at the stage of inquiry and no trial can be said to have commenced. The above view has been held to be per incuriam in Raj Kishore Prasad v. State of Bihar, (1996) 4 SCC 495, wherein this Court while observing that Section 319(1) CrPC operates in an ongoing inquiry into, or trial of, an offence, held that at the stage of Section 209 CrPC, the court is neither at the stage of inquiry nor at the stage of trial. Even at the stage of ensuring compliance with Sections 207 and 208 CrPC, it cannot be said that the court is at the stage of inquiry because there is no judicial application of mind and all that the Magistrate is require....