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PETITIONER: STATE OF WEST BENGAL

       Vs.

RESPONDENT: NARAYAN K.PATODIA

DATE OF JUDGMENT:       06/04/2000

BENCH: K.T. THOMAS & D.P. Mohapatra

JUDGMENT: of 1999

Thomas J. L.......T.......T.......T.......T.......T.......T.......T..J Leave granted.

The High Court of Calcutta has quashed the FIR registered in a  Police  Station mainly on the ground that the person  who forwarded the complaint to the police had no authority to do so.   The  State of West Bengal has, therefore,  filed  this Appeal by Special Leave.  The FIR was registered for certain offences  under the Indian penal Code and West Bengal  Sales Tax Act 1994 (for short the ‘Sales Tax Act’).  The complaint which  was  made  the basis for such an  FIR  contained  the allegations  that  respondent submitted two applications  on 21.1.1998  before  the Assistant Commissioner of  Commercial Taxes,  Burdwan  impersonating himself as one Mohan  Agrawal (478  Katwa  Road,  Hari  Narainpur,   Burdwan)  who  is   a fictitious  person;   respondent signed the applications  in the  false  name of the said Agrawal and described him as  a businessman  dealing in spices under the trade name "Parbati Traders."  The  applications  were   made  in  the  Proforma (Form-A)   prescribed  under  the   West  Bengal  Sales  Tax (Registration  and  Turnover)  Rules  1957,  and  they  were appended  with  documents all of which were forged.  On  the basis  of the said fabricated documents respondent  obtained registration  under the Sales Tax Act which entitled him  to make  purchases at concessional rate of sales tax, and  also to  receive  permits for importing spices from  outside  the State.   On the strength of the registration so obtained the respondent  applied for the issue of five permits to  import spices the sales tax of which would have been 2.73 lacs.  In those  applications again the respondent personated  himself to be the aforesaid fictitious Mohan Agrawal.

When the Bureau of Investigation formed by the Government of West  Bengal under the Sales Tax Act, got secret information about the fraud played by the respondent they conducted some discreet investigation and then it was revealed to them that the   respondent   had  committed   the  said  forgery   and impersonation  to  defraud the government of huge sales  tax amount.  It was further revealed that respondent had wangled another  registration on 1.12.1977 in the fictitious name of Surendra   Luhariwala  who  purportedly   did  business   as "Luhariwala  Trading Company 33/1, N.S.  Road Calcutta."  By using  the said registration respondent carried on  business and  defrauded  the Government of sales tax to the  tune  of Rupees thirty-two lakhs.

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The   said   complaint  was   presented  by  the   Assistant Commissioner   of   Commercial    Taxes    to   the   Deputy Superintendent of Police who was then attached to the Bureau of  Investigation formed under the Sales Tax Act.  The  said Deputy  Superintendent, in turn, forwarded the complaint  to the  officer  in  charge  of  Hare  Street  Police  Station, Calcutta with a request to "start a case under Sections 403, 409,  465, 468, 471, 419, 420 read with 120B of Indian Penal Code  and Section 88(1)(b)(6) and (7) of the Sales Tax  Act, 1994 treating the complaint as FIR."

Pursuant  thereto  the Station House Officer of Hare  Street Police  Station  registered  the FIR.   Respondent,  getting scent  of the same moved the City Civil Court, Calcutta  for anticipatory  bail  but that was rejected on 11.6.1998.   He then  moved  the  High  Court invoking  its  revisional  and inherent  jurisdiction  for  quashing the FIR  and  on  such motion  being  made further investigation was stayed by  the High  Court  as per order dated 17.6.1998.  Finally the  FIR was  quashed  as  per  the impugned  judgment  delivered  by learned  single  judge  of  the   Calcutta  High  Court   on 19.11.1998.

Learned single judge advanced the following reasoning, inter alia, for quashing the FIR:

"Under  Section  7  of the West Bengal Sales  Tax  Act,  the Bureau  of  Investigation constituted under the said Act  is the  only  competent authority to investigate in respect  of any  offence  under  the  said  Act  which  means  no  other authority  can carry out investigation or hold inquiry  into any  case of alleged or suspected evasion of tax as well  as malpractices  connected  therewith.   It also  appears  that under  the  provisions  of  Section  7(3)  no  complaint  is required  to  be presented before any authority as has  been done in the instant case but only a report is required to be submitted before the Commissioner.  Section 7(3) of the West Bengal Sales Tax Act, 1994 clearly says that the Bureau may, on  information  or  of its own motion, or  when  the  State Government  or  the  Commissioner  so  directs,  carry   out investigation  or  hold inquiry into any case of alleged  or suspected  evasion of tax as well as malpractices  connected therewith  and  send  a  report in respect  thereof  to  the Commissioner.   In  the  instant case, as  it  appears,  the Bureau  of  Investigation on its own accord and  information carried out investigation but instead of sending a report to the  Commissioner  on the basis of the  said  investigation, sent a complaint before the Deputy Superintendent of Police, Bureau  of  Investigation "against clear provisions of  law" and  the said Deputy Superintendent of Police Forwarded  the same to Hare Street Police Stattion......."

Further again the single judge observed thus

"The  person who was making the FIR by forwarding a petition of  complaint  based  on investigation already done  had  no authority  to  direct the officer-in- charge, that the  case must  be  again investigated by his own subordinate  officer Sri  Amitava  Chakravorty and that too under  the  different sections  of the IPC read with Section 88(i)(6) & (7) of the West  Bengal  Sales  Tax  Act, 1994.  Such  a  procedure  is unknown either in the Criminal Procedure Code or in the West Bengal Sales Tax Act, 1994."

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The  High  Court expressed the opinion that under the  Sales Tax  Act  only a Bureau of Investigation constituted by  the State  Government  can  conduct the  investigation  or  hold inquiry into any case of alleged or suspected evasion of tax as  well  as malpractices connected therewith, and hence  no police  officer can investigate into the offences under  the Indian  Penal  Code  or  any other Act  read  with  offences committed under Section 88 of the Sales Tax Act.

It  is  apparent  that  learned single judge  has  not  been appraised  of  the  danger  involved   in  adopting  such  a farfetched  legal  proposition.   Assume that a  person  who committed  any offence under section 88 of the Sales Tax Act has  also committed some other serious offence in connection with  perpetration  of  the  former offence  what  would  be position  of  the police if the view adopted by the  learned single judge is to be followed.  Is it that police force has merely  to  look askance at such persons helplessly  on  the mere  ground  that  an offence under Sales Tax Act  is  also involved   and   hence  the  powers   of  the   police   are unenforceable in that condition?

Learned single judge of the High Court has relied on Section 4  of the Code of Criminal Procedure (for short the ‘Code’). To  find further support to his view that when a special law is  provided  for  dealing  with  offences  thereunder  such offence  can  be  dealt  with only in  accordance  with  the provisions of such special law.

To  understand  the  scope of the said legal trammel  it  is advantageous  to  refer  to Section 4 of the  Code.   It  is extracted below:

4.   Trial of offences under the Indian Penal Code and other laws.  - (1) All offences under the Indian Penal Code (45 of 1860)  shall  be  investigated, inquired  into,  tried,  and otherwise dealt with according to the provisions hereinafter contained.

(2)  All offences under any other law shall be investigated, inquired  into, tried, and otherwise dealt with according to the  same  provisions, but subject to any enactment for  the time  being  in  force  regulating the manner  or  place  of investigating,  inquiring into, trying or otherwise  dealing with such offences."

So far as the offences under Indian Penal Code are concerned sub-section  (i) mandates that they can be investigated into and  tried according to the provisions of the Code.  When we go  to  sub-section (ii) which concerns the offences  "under any other law" it is again the rule that such offences shall also  be investigated and tried according to the  provisions of the Code itself, but with a rider that such investigation or  trial shall be subject to the regulation regarding  "the manner  or place of" such investigation or trial  prescribed in  any  enactment  for the time being in force.   In  Mirza Iqbal Hussain vs.  State of Uttar Pradesh [1982 (3) SCC 516] a  two  judge  bench  of this  Court  (Chandrachud,  CJ  and Chinnappa  Reddy,  J.) considered the contention that  in  a trial  of  offences under Prevention of Corruption  Act  the special  court  has no power to confiscate any  property  in view of Section 4(2) of the Code which excludes powers under the  code while dealing with offences under laws other  than Indian  Penal  Code.  After extracting Section 4(2)  of  the Code learned judges observed as follows:

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"It  is  clear  from this provision that in so  far  as  the offences  under  laws other than the Indian Penal  Code  are concerned,  the provisions of the Code of Criminal Procedure apply  in  their  full  force subject  to  any  specific  or contrary  provision made by the law under which the  offence is investigated or tried."

The  Constitution  Bench  which decided AR Antulay  vs.   RS Nayak  [1984 (2) SCC 500] has cautioned that the Code is the parent  statute  which provides for investigations,  inquiry into,  and  trial  of  cases and unless  there  is  specific provision in other statute to indicate a different procedure to  be  followed,  the  provisions of  the  Code  cannot  be displaced.   Taking cue from the said ratio this court  held recently  in Gangula Ashok vs.  State of Andhra Pradesh  [JT 2001  SC 379] while interpreting Section 4(2) of the Code as follows:

"A reading of the sub-section makes it clear that subject to the  provisions in other enactments all offences under other laws  shall  also be investigated, inquired into, tried  and otherwise dealt with under the provisions of the Code.  This means  that if other enactment contains any provision  which is  contrary  to  the  provisions of the  Code,  such  other functions  would apply in place of the particular  provision of  the  Code.   If there is no such contrary  provision  in other  laws, then provisions of the Code would apply to  the matters covered thereby."

We  did  not come across any provision in the Sales Tax  Act which  inhibits the powers of the police as conferred by the Code.   Chapter  X  of  the Act  deals  with  "Offences  and penalties."  Section  88  falls  within  the  said  chapter. Sub-section (1)c reads thus:

"Whoever-  c fails to make payment of interest payable under section  31 or section 32;.........shall be punishable  with simple  imprisonment which may extend to six months or  with fine   not   exceeding   one   thousand   rupees   or   with both.............."

Section 88 (6) & (7) are also extracted below:

(6)  Whoever  wilfully  attempts in any manner to  evade  or defeat any tax imposed under this Act, shall, in addition to any  other penalty provided by any law for the time being in force,  be  liable  also  for   the  offence  of   dishonest misappropriation of property under section 403 of the Indian Penal  Code,  and shall be punishable with  imprisonment  of either description which shall not be less than three months but which may extend to two years or with fine not exceeding ten thousand rupees or with both.

(7) Whoever knowingly produces incorrect accounts, registers or  documents, or knowingly furnishes incorrect  information or  suppresses material information shall be punishable with imprisonment  of either description which shall not be  less than  three months but which may extend to two years or with fine not exceeding ten thousand rupees or with both."

The  offence  envisaged in sub-section (6)  is  specifically created as supplemental to any other penalty provided by any law  for  the  time being in force.   This  means,  offences

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falling  under  the  Indian Penal Code and  committed  by  a person   while  committing  the   offence  contemplated   in sub-section  (6)  cannot get displaced for the  sole  reason that  the  accused has committed the offence  falling  under sub-section (6) of Section 88.

Section  7(1)  of  the  Sales Tax  Act  empowers  the  State government  to  constitute  a Bureau  of  Investigation  for discharging  the  functions referred to in  sub-section  (3) thereof.    It  empowers  the  Bureau   to  carry   on   the investigation  or  hold enquiry into any case or alleged  or suspected  case  of  evasion of tax or  malpractice  created thereof  and  send  a report of it to the  Commissioner.   A reading  of Section 7 makes it clear that creation of Bureau of Investigation for the purpose of discharging the function envisaged  in  sub-section  (3) which, of  course,  includes investigation  also.  But there is nothing in Section 7 that such  investigation  can be carried on "only" by the  Bureau and  not any other investigating agency.  It is open to  the Bureau   to  get  the  assistance   of  any  other   legally constituted  investigating agency for effectively  inquiring into  all the ramifications of the offence.  As in this case if offences falling under the Indian Penal Code or any other enactment   are   also  detected   during  the   course   of investigation conducted by the Bureau there is no inhibition to pass over the investigation to the regular police.

If  the  view of the learned single judge gets  approval  it would  lead to startling consequences.  The consequences  of such  an  interpretation  would be that if  the  person  who commits the offence under Section 88 of the Act also commits other  serious  offences falling under Indian Penal Code  as part  of the same transaction neiher the regular police  nor any  special  police  force nor even the Central  Bureau  of Investigation  can  be authorised to conduct  investigation. The  accused  in  such cases would then  be  well  ensconced insulated   from  the  legal   consequences  of  proper  and effective  investigation.   Criminal  justice would  be  the serious casualty then.

That   apart,   how  could  the   FIR  be  quashed  if   the investigating agency should have been different?  By lodging FIR  alone no investigation is conducted by the police.   It is  the  first  step towards starting investigation  by  the police.  If High Court was of the opinion that investigation has  to  be conducted by the Bureau then also there  was  no need  to  quash the FIR.  Any way we take the view  that  as offences  under  the  Indian Penal Code are  also  involved, efficacious  investigation can be conducted by entrusting it to  the police investigating agency.  Inherent powers of the High  Court  as  recognised in Section 482 of the  Code  are reserved  to be used "to give effect to any orders under the Code,  or  to prevent abuse of the process of any  court  or otherwise  to  secure  the  ends of justice."  It  is  quite unfortunate that learned single judge overlooked the reality that  by quashing the FIR in the case the High Court did not achieve  any one of the above factors.  On the contrary, the result  of  quashing the FIR had rendered the allegation  of offences made against a person to remain consigned in stupor perennially.   Hence, instead of achieving ends of  criminal justice, the impugned order would achieve the reverse of it.

So  from  any  angle, the High Court has  committed  serious error in quashing the FIR.  We, therefore, allow this appeal and set aside the impugned judgment.

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