TaxTMI 
TaxTMI 
2026 (9) TMI 1261
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....er's application under Section 311 CrPC seeking recall and further cross-examination of PW-15, Y.K. Batra. FACUTAL MATRIX 3. The prosecution case has its genesis in information received by the Income Tax Department regarding alleged income tax evasion by Ashok Chawla. The information was processed by the Investigation Wing and search and seizure operations were undertaken on 31.08.1995 at different premises connected with Ashok Chawla and his associates. 4. During the course of the searches, information was allegedly received regarding a garage situated at C - 517, Defence Colony, New Delhi. An authorization under Section 132 of the Income Tax Act, 1961 (hereinafter referred to as the 'IT Act') was thereafter issued in respect of the said premises. During the search of the garage, certain documents relating to the Ministry of Defence, which were stated to be classified as "Secret" and "Confidential", were allegedly recovered. 5. The said documents were thereafter forwarded to the Ministry of Defence. On the basis of a complaint made by the Ministry, RC No.6(S)/96/SACB-I was registered by the CBI on 30.08.1996. Upon completion of investigation and after authorization by ....
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.... v. Director of Income Tax & Ors., W.P.(C) 4299/2007, in which the validity of the warrant and the search proceedings had been specifically challenged. 11. By the impugned order dated 07.09.2022, the learned Trial Court noticed that the aforesaid judgment had not been brought to its notice when the earlier direction for production of the documents was passed. Taking into account the findings returned by the Division Bench concerning the search, the learned Trial Court held that production of the Satisfaction Note, Authorization Warrant and Panchnama for reopening the validity of the search was no longer required. The order dated 02.03.2020 was modified to that extent. 12. The Petitioner thereafter moved an application under Section 311 CrPC on 10.08.2023 seeking recall of PW-15 Y.K. Batra. The case set up in the application was that when PW-15 had earlier been examined, the defence was unaware of PW-3's subsequent disclosure that the Satisfaction Note had been routed through PW-15. It was, therefore, prayed that PW-15 be recalled so that he could be confronted with the Satisfaction Note and further questioned in relation thereto. 13. The application was dismissed by the le....
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....lier dates, proceeded on the footing that the summoned documents were relevant. 19. Insofar as Section 311 CrPC is concerned, it is submitted that the application was moved before conclusion of the evidence of the Investigating Officer ('IO') and the Petitioner cannot be faulted for the time taken by the Court in deciding it. The principal submission is that PW-15 ought to be confronted with the fact subsequently disclosed by PW-3, namely, that the Satisfaction Note had been routed through him. 20. In support of the prayer under Sections 91 and 311 CrPC, learned counsel has relied upon Satbir Singh v. State of Haryana & Ors., 2023 INSC 786; Varsha Garg v. State of Madhya Pradesh & Ors., Criminal Appeal No.1021/2022, and Shyam Manohar Saxena v. CBI & Ors., 2019:DHC:3091. 21. Reliance has also been placed upon Chairman-cum-Managing Director, Coal India Ltd. & Ors. v. Ananta Saha & Ors., (2011) 5 SCC 142, in support of the maxim sublato fundamento cadit opus; A-One Granites v. State of U.P. & Ors., (2001) 3 SCC 537, to submit that a question which was not consciously determined in an earlier decision cannot be treated as concluded, and Union of India & Ors. v. M/s Agarwal Iro....
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....n passing the order dated 07.09.2022 and declining further production of the documents earlier summoned under Section 91 CrPC. Second, whether the order dated 11.10.2023 declining to recall PW-15 under Section 311 CrPC warrants interference by this Court in exercise of its jurisdiction under Section 482 CrPC. ORDER DATED 07.09.2022 - SECTION 91 CRPC 29. Section 91 CrPC is conditioned by the requirement that production of the document or thing must be considered "necessary or desirable" for the purposes of the investigation, inquiry, trial or other proceeding. In State of Orissa v. Debendra Nath Padhi (supra), the Supreme Court held: "The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production." 30. Thus, an order under Section 91 CrPC does not turn merely on the existence or availability of a document. The Court must be satisfied that compelling its production serves a necessary or desirable purpose in the proceeding. 31. When the orders dated 18.02.2020 and 02.03.2020 were passed, the learned Trial C....
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....ections, the Division Bench observed as under: "31. As far as the alleged illegalities in the timing of the search, or that it was improbable that searches took place at two places - argued with certain vehemence by learned senior counsel, this court is of the opinion that nothing much turns on these so called infirmities. For one, the factual nature of these allegations, i.e., as to timing, as to presence of certain pancha or recovery witnesses, renders it somewhat difficult to substantiate. From a broader angle, whether the search occurred at 08:00 AM or an hour later, is left for verification by affidavits signed by the witnesses much after the event. Their signatures on the panchnamas at the time of the search belie the affidavits. These arguments at best could establish some irregularities, for which the Revenue might have had a perfect or plausible explanation, if made in time. However, even if accepted at face value, such facts cannot undermine the search, the recoveries effected or in any case and the validity of the block assessments. The assessee/Ashok Chawla's submissions in this regard are therefore, rejected." 35. The contention of the Petitioner that the j....
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....ere only to the limited extent that an order directing or refusing production under Section 91 is not a final adjudication of the substantive rights of the parties. 42. The orders dated 18.02.2020 and 02.03.2020 were procedural directions compelling production of documents. They did not determine any ingredient of the offence, the admissibility or effect of the alleged recovery, or any defence of the accused. Their operative foundation was the then existing assessment that production of the documents was necessary. The order dated 07.09.2022 cannot, therefore, be equated with a substantive review of a judgment or final order. The learned Trial Court reconsidered the continuing necessity of a procedural production direction after a prior Division Bench adjudication, which had not been brought to its notice earlier, was placed before it. 43. Section 91 itself requires the Court to consider whether production is necessary or desirable for the proceeding. An earlier direction to produce a document cannot compel the Court to insist upon its production even after material directly bearing upon its continuing necessity is brought to its notice. 44. The fact that the CBI did not c....
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....t could examine the relevant confidential file to see whether reasons had been recorded and whether the authorization met the requirement of law. 49. In the present case, however, the material and file notings forming the basis of the warrant had already been placed before and considered by the Division Bench in the proceedings culminating in the judgment dated 11.04.2017. Agarwal Iron Industries (supra) cannot, therefore, be read as requiring the learned Trial Court, while considering necessity of production under Section 91 CrPC, to once again call for the same foundational material merely for re-examining the legality of the search. 50. This Court, therefore, finds no jurisdictional error in the conclusion of the learned Trial Court that continued production of the Satisfaction Note, Authorization Warrant and Panchnama for the stated purpose was not required. The order dated 07.09.2022 calls for no interference. ORDER DATED 11.10.2023 -SECTION 311 CRPC 51. Section 311 CrPC undoubtedly confers wide power upon a criminal court to summon, recall or re-examine a witness at any stage. The width of the power, however, does not make recall automatic. The controlling require....
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.... of planting was also specifically put to PW - 15. He denied the suggestion that the documents relating to defence deals had been planted at the premises in connivance with Income Tax officials. Ex. PW- 5/A was again shown to him during cross examination and he was questioned regarding the circumstances of its issuance as well as his interaction with PW-3 prior thereto. 58. The areas relating to the preliminary inquiry, information concerning C-517, authorization of the search and the allegation that the recovery was planted were, therefore, not matters on which the defence had been denied an opportunity of cross examination. 59. The decisions relied upon by the Petitioner on Section 311 CrPC do not compel a different result. In Satbir Singh (supra), recall was permitted because a relevant factual issue arose only after the subsequent examination of the CFSL expert. The Supreme Court specifically found that, at the time of the witness's initial deposition, there had been no occasion to bring those later-emerging facts before the Court. 60. The present case stands differently. It is true that PW - 3 subsequently stated that the Satisfaction Note had been routed through PW -....