Bombay High Court
Imtiyaz Iqbal Fatta vs Central Bureau Of Investigation, ... on 20 March, 2017
Bench: B.R. Gavai
APL 218.15 + APL 320.15.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION [APL] NO.218 OF 2015
WITH
CRIMINAL APPLICATION [APL] NO.320 OF 2015
CRIMINAL APPLICATION [APL] NO.218 OF 2015
Amit Suresh Arya,
Aged about 39 years,
Occupation-Director of
M/s. Eva Tex Private Limited,
Plot No.W-2 & 3, M.I.D.C.
Industrial Area, Butibori,
District-Nagpur. .. Applicant
.. Versus ..
1] Central Bureau of Investigation,
Through Police Station Inspector,
Anti-Corruption Bureau, Nagpur.
2] State of Maharashtra,
Through its Secretary,
Home Department, Mantralaya,
Cama Road, Mumbai-32. .. Non-Applicants
WITH
CRIMINAL APPLICATION [APL] NO.320 OF 2015
Imtiyaz Iqbal Fatta,
Aged 39 years,
Occupation-Business,
Resident of 301, "Noorani
Apartment", Rander Road,
Adajan Surat, Gujrat. .. Applicant
::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 20:23:36 :::
APL 218.15 + APL 320.15.odt 2
.. Versus ..
1] Central Bureau of Investigation,
Through Police Station Inspector,
Anti-Corruption Bureau, Nagpur.
2] State of Maharashtra,
Through its Secretary,
Home Department, Mantralaya,
Cama Road, Mumbai-32. .. Non-Applicants
..........
Shri Shashank Manohar, Advocate with Shri A.S.
Manohar, Advocate for Applicant in APL No.218/2015,
Shri U.P. Dable, Advocate for Applicant in APL
No.320/2015,
Shri Ezaj Khan, Advocate with Mrs. Mugdha Chandurkar,
Advocate for Non-Applicant No.1-CBI in both APL,
Shri J.Y. Ghurde, Additional Public Prosecutor for Non-
Applicant No.2-State in both APL.
..........
CORAM : B.R. GAVAI AND
KUM. INDIRA JAIN, JJ.
DATED : MARCH 20, 2017.
ORAL JUDGMENT : (Per : KUM. INDIRA JAIN, J.)
By these applications under Section 482 of the
Code of Criminal Procedure, applicants are seeking quashing
of proceedings in Regular Criminal Case No.2303/2007
pending before the Chief Judicial Magistrate, Nagpur
registered pursuant to the filing of charge-sheet bearing
::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 20:23:36 :::
APL 218.15 + APL 320.15.odt 3
No.5/2007 dated 7.7.2007 in Crime No.RCNAG 2005A0012
for the offences punishable under Sections 120-B, 420, 468
and 471 of the Indian Penal Code.
2] The facts giving rise to the applications may be
stated, in brief, as under :
(a) Applicants are proprietors of M/s. Eva Tex
Private Limited, situated at M.I.D.C. Butibori, District-Nagpur.
They applied for license for setting up a Private Bonded
Warehouse at the premises of the firm. Vide their
communication dated 5.2.2004, they informed the Customs
and Central Excise department that machines have been
installed and firm is ready to execute B-17 Bonds. The then
Assistant Commissioner, Customs and Central Excise,
Division-II, Nagpur Shri V.S. Kumbhare directed Shri V.P.
Patki, the then Superintendent of Customs and Central
Excise, Range-Butibori to carry out the verification of the
premises of the unit. Shri Om Prakash Shirpurkar was the
then Inspector of Customs and Central Excise, Range-
Butibori.
(b) On 1.3.2004, B-17 Bond was accepted
by Shri V.S. Kumbhare from the applicants. Shri V.P. Patki
issued CT-3 certificates in the name of firm to procure duty
::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 20:23:36 :::
APL 218.15 + APL 320.15.odt 4
free Polyster Texurised Yarn/Roto Polyster Yarn from various
units in the Domestic Tariff Area. Shri Shirpurkar has
certified the receipt of raw material at the factory premises.
Allegations against applicants are that after purchasing yarn
they did not manufacture polyester fiber and did not
transfer them to Export Oriented Unit (EOU) as per the
terms and conditions agreed. They disposed of the yarn by
evading excise duty to the extent of Rs.71 Lacs.
(c) The officers of Customs and Central
Excise department visited the unit of applicants on
1.7.2004. At the time of visit, they found that premises
were closed since 9.6.2004. No stock of raw material or
finished goods was found in the godown. The officers also
did not notice number of machines installed in the unit, as
informed by the applicants, vide their communication dated
5.2.2004. Both the applicants were interrogated from time
to time and on 17.8.2004, they were arrested by the officers
of the department of Customs and Central Excise. Criminal
Complaint No.1955/2009 was filed by the Assistant
Commissioner, Customs and Central Excise, Division-II,
Nagpur before the Chief Juridical Magistrate, Nagpur under
Sections 9, 9AA and 10 of the Central Excise Act, 1944
alleging therein that applicants intensionally evaded excise
::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 20:23:36 :::
APL 218.15 + APL 320.15.odt 5
duty to the tune of Rs.72 Lacs by preparing bogus and
forged documents, by showing fictitious transaction only on
paper and by furnishing false information with a view to
cheat the department and caused loss to government
exchequer.
(d) On 28.9.2005, on the basis of source
information, non-applicant no.1 registered offences
punishable under sections 120-B read with Sections 420,
467, 468 and 471 of the Indian Penal Code and Section 13
(2) read with Section 13 (1)(d) of the Prevention of
Corruption Act, 1988 against the three officers of the
Customs and Central Excise Department named above and
both the applicants. The first information was lodged by
Narasimha Komar, Superintendent of Police attached to non-
applicant no.1. The allegations in FIR against the applicants
are that they diverted the raw material to the Domestic
Tariff Area and thereby caused loss of revenue to the tune of
approximately Rs.70 Lacs by evading Customs and Central
Excise duty on deemed imports to the Department of
Customs and Central Excise, Nagpur and corresponding
pecuniary gain to themselves in active connivance with
officers of the Customs and Central Excise department, who
misused their official position as a public servant by corrupt
::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 20:23:36 :::
APL 218.15 + APL 320.15.odt 6
or illegal means and caused pecuniary loss to the tune of
Rs.70 Lacs approximately to the Department.
(e) In pursuance to the registration of FIR,
investigation was set into motion. On completing
investigation, charge-sheet no.5/2007 dated 7.7.2007 was
presented before the learned Chief Judicial Magistrate,
Nagpur. It came to be registered as Regular Criminal Case
No.2303/2007. Being aggrieved by the registration of FIR
and proceedings in Regular Criminal Case No.2303/2007,
applicants have approached this court seeking interference
in the extra-ordinary jurisdiction.
(f) Vide order of this court dated 13.8.2015,
Rule was issued and vide order dated 12.10.2015, stay to
the proceedings in regular criminal case was granted. Non-
applicant no.1-Central Bureau of Investigation (CBI) filed its
reply and strongly resisted the applications. According to
non-applicant no.1, as sanction to prosecute against the
officers of Customs and Central Excise department was
refused, charge-sheet came to be filed against the private
persons, as it was established during investigation that
applicants, as partners of the firm, not only evaded payable
duty but also cheated the department in connivance with
the officers of the department by preparing forged record
::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 20:23:36 :::
APL 218.15 + APL 320.15.odt 7
and using the forged record as genuine knowing that the
record was forged, which are the distinct offences under the
Indian Penal Code and independent of action under the
Customs and Central Excise Act. It is submitted that
Criminal Complaint No.1955/2009 and the FIR in criminal
proceedings under challenge are the distinct proceedings
and cannot be treated as one and the same. In this
premise, submission is that principle of double jeopardy on
which applicants are placing reliance is misleading and in
view of sufficient evidence collected during investigation of
the crime registered against the applicants, interference in
extra-ordinary jurisdiction is not warranted.
3] We have heard the learned counsel for parties at
length. Shri Shashank Manohar, learned counsel appearing
on behalf of applicant in Criminal Application (APL)
No.218/2015 raises manifold legal issues regarding
maintainability of criminal proceedings. The submissions
are :
(i) In the absence of consent under Section 6 of
the Delhi Special Police Establishment Act,
1946 (for short "The Delhi Act") from the
State Government, officers of the Central
Bureau of Investigation are not empowered
::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 20:23:36 :::
APL 218.15 + APL 320.15.odt 8
to investigate the offences other than the
offences under the Prevention of Corruption
Act, 1988.
(ii) In view of the previous complaint filed under
the Customs and Central Excise Act,
subsequent registration of FIR and initiation
of criminal proceedings on identical set of
facts is per se hit by the doctrine of double
jeopardy.
(iii) Considering the offences alleged, aggrieved
person ought to have lodged the report and
based on source information not disclosed at
any time, complainant has no locus to lodge
report alleging the offences of cheating,
forgery etc.
(iv) Company is not arraigned as an accused and
without arraigning company as an accused,
the prosecution against applicants is not
maintainable.
4] Learned counsel strenuously submitted that even
on merits offences alleged in FIR are not at all attracted and
prima facie there is no material to implicate the applicants
in the offences alleged under the Indian Penal Code.
Reliance is placed on the decision of the Hon'ble Supreme
Court in Mohammed Ibrahim and others .vs. State of
Bihar and another, [(2009) 8 SCC 751].
::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 20:23:36 :::
APL 218.15 + APL 320.15.odt 9
5] Per contra, learned Special Counsel for non-
applicant no.1-CBI strenuously submitted that CBI derives
the powers from the Delhi Act co-extensive with the powers,
duties, privileges and liabilities with the members of the
Delhi Special Police Establishment. On consent of the State
Government, submission is that vide Notification dated
18.2.1963, Government of India extended the powers and
jurisdiction of member of Delhi Special Police Establishment
to State of Maharashtra for the investigation of offences
specified in list, which includes the offences under Sections
120-B, 420, 467, 468 and 471 of the Indian Penal Code.
Learned counsel states that Government of Maharashtra by
its Notification dated 22.2.1989 accorded sanction under
Section 6 of the Delhi Act for investigation of offences
punishable under the Prevention of Corruption Act including
offences involving attempts, abetments and conspiracies in
the said offence or in connection with one or more of the
said offences and any other offences committed in the
course of the same transaction arising out of the same facts.
6] On the principle of double jeopardy, learned
counsel for CBI submitted that criminal proceeding and
action under the Central Excise Act are the two distinct
::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 20:23:36 :::
APL 218.15 + APL 320.15.odt 10
proceedings and they cannot be treated as one and the
same. He submits that two different enactments takes care
of violation of law in the similar set of facts and when
actions are distinct and separate, principle of double
jeopardy would not come to the rescue of applicants.
7] Regarding locus, it is submitted that officer of CBI
has lodged the report on the basis of source information and
even on source information criminal law can be set into
motion without disclosing the identity of the informant.
8] So far as fourth objection raised by the applicants
is concerned, learned counsel submitted that premises of
the unit was inspected and it was revealed during enquiry
that applicants not only evaded payment of duty but also
committed several criminal acts attracting penal action.
According to the learned counsel, in such circumstance, FIR
was rightly lodged by the officer of non-applicant no.1 and
question of locus would not arise.
9] On merits, it is submitted that there is strong
prima facie case against the applicants. The proceedings
are pending before the courts and let the competent court
::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 20:23:36 :::
APL 218.15 + APL 320.15.odt 11
to decide the criminal proceedings on its own merits. To
substantiate his submission, learned counsel placed reliance
on :
(1) H.N. Rishbud and another .vs.
State at Delhi,
[AIR 1955 SC 196].
(2) The State of Bombay .vs. S.L.
Apte, 1956 SC OnLine Bom.133].
(3) M. Balakrishna Reddy .vs.
Director, CBI, New Delhi,
[2008) 4 SCC 409.
(4) V.K. Agarwal, Assistant Collector
of Customs .vs. Vasantraj
Bhagwanji Bhatia and others,
[(1988) 3 SCC 467].
10] We have given our anxious consideration to the
rival submissions of the learned counsel for both the sides.
We have also examined the relevant provisions of Delhi Act,
Article 166 of the Constitution of India relating to conduct of
business of the Government of the State and case law cited
by both the parties. We are of the view that preliminary
objections raised on behalf of the applicants are not
sustainable though on merits, they succeed as ingredients
of the offences under the Penal Law are not made out from
the FIR, charge-sheet and the connecting papers thereto.
::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 20:23:36 :::
APL 218.15 + APL 320.15.odt 12
11] So far as preliminary objections are concerned, we
propose to consider each of them in chronological order as
below :
(i) In the absence of consent under
Section 6 of Delhi Special Police Establishment Act,
1946 from the State Government, officers of the
Central Bureau of Investigation are not empowered
to investigate the offences other than the offences
under the Prevention of Corruption Act, 1988 :
The first and foremost ground to be considered is
whether "consent" as envisaged by Section 6 of the Delhi
Act has been given by the State Government of Maharashtra
to the Central Government so as to enable the latter to
invoke the provisions of the Delhi Act. For the said purpose,
it is necessary to bear in mind the relevant provisions of the
Delhi Act and the historical background in which enactment
was brought into existence.
The system which existed prior to the Delhi Act
was that a Central Government Police Force was constituted
in the Chief Commissioner's province of Delhi and was
functioning there. On the commencement of the
Constitution, Entry 80 of the Union List in the Seventh
Schedule to the Constitution took place of Entry 39 of the
::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 20:23:36 :::
APL 218.15 + APL 320.15.odt 13
Federal Legislative list of the Seventh Schedule of the
Government of India Act, 1935. In substance, Entry 80 of
the Union List is the same, as Entry 39 of the Federal
Legislative List of the Government of India Act. For the sake
of convenience, Entry 80 of the Union List in the Seventh
Schedule of the Constitution is reproduce here as under :
80. Extension of the powers and
jurisdiction of members of a police force
belonging to any State to any area
outside that State, but not so as to
enable the police of one State to exercise
powers and jurisdiction in any area
outside that State without the consent of
the Government of the State in which
such area is situated; extension of the
powers and jurisdiction of members of a
police force belonging to any State to
railway areas outside that State.
As the preamble of the Delhi Act states, it is an Act
to make provision for the constitution of a Special Police
Force in Delhi for the investigation of certain offences in the
Union territories and for the extension to other areas of the
powers and jurisdiction of the members of the said force
with regard to the investigation of the said offences.
Section 1 declares that the Act extends
to the whole of India.
Section 2 provides for Constitution and
powers of Special Police Establishment.
Section 3 enables the State Government
to investigate offences by Special Police
::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 20:23:36 :::
APL 218.15 + APL 320.15.odt 14
Establishment which reads thus :
Section 3 : Offences to be investigated
by Special Police Establishment.- The
Central Government may, by notification
in the Official Gazette, specify the
offences or classes of offences which are
to be investigated by the Delhi Special
Police Establishment.
Section 4 covers superintendence and
administration of Special Police
Establishment.
Section 5 empowers the Central
Government to extend the powers and
jurisdiction of Special Police
Establishment to States. The said
section is also relevant and reproduced :
Section 5 : Extension of powers
and jurisdiction of Special Police
Establishment to other areas .- (1)
The Central Government may by
order extend to any area
(including Railway areas) in a
State, not being a Union territory,
the powers and jurisdiction of
members of the Delhi Special
Police Establishment for the
investigation of any offences or
classes of offences specified in a
notification under section 3.
(2) When by an order under
sub-section (1) the powers and
jurisdiction of members of the
said police establishment are
extended to any such area, a
member thereof may, subject to
any orders which the Central
Government may make in this
behalf, discharge the functions of
a police officer in that area and
::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 20:23:36 :::
APL 218.15 + APL 320.15.odt 15
shall, while so discharging such
functions, be deemed to be a
member of a police force of that
area and be vested with the
powers, functions and privileges
and be subject to the liabilities of
a police officer belonging to that
police force.
(3) Where any such order
under sub-section (1) is made in
relation to any area, then, without
prejudice to the provisions of sub-
section (2) any member of the
Delhi Special Police Establishment
of or above the rank of Sub-
Inspector may subject to any
orders which the Central
Government may make in this
behalf, exercise the powers of the
officer in charge of a police
station in that area and when so
exercising such powers, shall be
deemed to be an officer in charge
of a police station discharging the
functions of such an officer within
the limits of his station.
Section 6 is relevant in the present
controversy which requires consent of
the State Government for exercising
powers and jurisdiction under the Act by
Special Police Establishment to any area
in a State not being Union Territory or
Railways. The said section reads thus :
Section 6 : Consent of State
Government to exercise of powers
and jurisdiction .- Nothing
contained in Section 5 shall be
deemed to enable any member of
the Delhi Special Police
Establishment to exercise powers
and jurisdiction in any area in a
State, not being a Union Territory
::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 20:23:36 :::
APL 218.15 + APL 320.15.odt 16
or Railway area, without the
consent of the Government of that
State.
12] From the cursory look at the above provisions, it is
clear that for exercise of jurisdiction by CBI in a State, other
than Union Territory or Railway area, consent of the State
Government is necessary. In other words, before the
provisions of the Delhi Act are invoked to exercise power
and jurisdiction by Special Police Establishment in any State,
the following conditions are prerequisite :
(1) A notification must be issued by the
Central Government specifying the offences to
be investigated by Delhi Special Police
Establishment, as required under Section 3.
(2) An order must be passed by the
State Government extending the powers and
jurisdiction of Delhi Special Police
Establishment to any State in respect of the
offences specified under Section 3, as
mentioned in Section 5.
(3) Consent of the State Government
must be obtained for the exercise of powers
by Delhi Special Police Establishment in the
State as per Section 6.
::: Uploaded on - 30/03/2017 ::: Downloaded on - 27/08/2017 20:23:36 :::
APL 218.15 + APL 320.15.odt 17
13] So far as first two conditions are concerned,
applicants do not dispute that they have been complied
with. Notification dated 7.9.1989 issued by Under Secretary
to the Government of India, Ministry of Personnel, Public
Grievances & Pensions Department of Personnel & Training,
New Delhi, is placed into service by the learned counsel for
CBI and the same shows that CBI is empowered to
investigate the offences punishable under Sections 120-B,
420, 467, 468 and 471 of the Indian Penal Code, which are
alleged in FIR against the applicants. This indicates
sufficient compliance of Section 3 of the Delhi Act. The
principal question which has to be considered by us is,
whether the consent contemplated by Section 6 of the Delhi
Act has been given by the State of Maharashtra. According
to the applicants, no such consent has been given by the
State of Maharashtra. The counter argument on behalf of
non-applicant no.1 is that such consent has been given by
the State Government as is reflected in the order dated
22.2.1989, which reads thus :
ORDER
Home Department, Mantralaya
Bombay - 400032
Dated : 22nd February, 1989
Delhi Special F. No. MIS-0189/CR-28/POL-3 - In
Police pursuance of the provisions of section 6
Establishment of the Delhi Special Police Establishment
Act, 1946 Act, 1946 (25 of 1946), the Governor of
Maharashtra hereby accords consent to
the extension of powers and jurisdiction
of the members of the Delhi Police
Establishment to the whole of the State
of Maharashtra, for investigation of
offences punishable under the Prevention
of Corruption Act, 1988 (49 of 1989),
including offences involving attempts,
abetments and conspiracies in the said
offences and any other offences
committed in the course of the same
transaction arising out of the same facts.
Sd/-
(A.K. BHASWAT)
Deputy Secretary to Government
Confidential No.MIS 0189/CR-28/POL-6
Immediate Home Department, Mantralaya,
Bombay-400 032.
Dated : 22nd February, 1989.
14] Non-Applicant No.1-CBI filed additional reply-in-
affidavit and along with additional reply, order dated
18.2.1963 issued by Government of India, Ministry of Home
Affairs, New Delhi has been annexed. Vide this order, power
and jurisdiction of members of the Delhi Special Police
Establishment are extended to State of Maharashtra for
investigation of offences under Sections 420, 467, 468 and
471 of the Indian Penal Code alleged against the applicants.
15] From a closer scrutiny of the relevant provisions of
the Delhi Act, it is crystal clear that Section 3 refers to
"Notification" and requires the Central Government to issue
notification specifying offences or classes of offences to be
investigated by the Delhi Special Police Establishment.
Section 5 uses the term "order" and empowers the Central
Government to extend powers and jurisdiction of Special
Police Establishment to other areas not covered by the Act.
Section 6 speaks of consent of State Government for the
exercise of powers and jurisdiction of the Delhi Special
Establishment without referring to the term "notification" or
"order". As Section 6 merely requires consent of the State
Government for the application of the Delhi Act, in our
considered view, by order dated 22.2.1989 State
Government has given the consent as envisaged by Section
6 of the Delhi Act and prosecution instituted by CBI against
the applicants cannot be said to be without jurisdiction. In
the light of the above, we find that the issue of consent
under Section 6 raised by the learned counsel for applicants
is unsustainable in law.
16] (ii) In view of the previous complaint
filed under the Customs and Central Excise Act,
subsequent registration of FIR and initiation of
criminal proceedings on identical set of facts is per
se hit by the doctrine of double jeopardy :
The doctrine of double jeopardy is enshrined in
Section 300 of the Code of Criminal Procedure and Section
26 of the General Clauses Act. Both the provisions imply
expression "same offence". In order to attract the
provisions of Section 300 of the Code of Criminal Procedure
or Section 26 of the General Clauses Act, the ingredients of
the offences in the earlier case as well as in the latter case
must be the same and not different. The test to ascertain,
whether two offences are same is not the identity of
allegations but the identity of ingredients of the offence.
The Hon'ble Supreme Court elaborately dealt with the
provisions contained in Section 300 of the Code of Criminal
Procedure in State of Bihar .vs. Murad Ali Khan, (1988)
4 SCC 655. The relevant paragraphs are quoted herein
below :
"26. Broadly speaking, a protection
against a second or multiple punishment
for the same offence, technical
complexities aside, includes a protection
against re-prosecution after acquittal, a
protection against re-prosecution after
conviction and a protection against
double or multiple punishment for the
same offence. These protections have
since received constitutional guarantee
under Article 20(2). But difficulties arise
in the application of the principle in the
context of what is meant by 'same
offence'. The principle in American law is
stated thus:
'The proliferation of
technically different offences
encompassed in a single instance of
crime behaviour has increased the
importance of defining the scope of
the offence that controls for
purposes of the double jeopardy
guarantee.
Distinct statutory provisions
will be treated as involving separate
offences for double jeopardy
purposes only if "each provision
requires proof of an additional fact
which the other does not"
(Blockburger v. United States).
Where the same evidence suffices to
prove both crimes, they are the
same for double jeopardy purposes,
and the clause forbids successive
trials and cumulative punishments
for the two crimes. The offences
must be joined in one indictment and
tried together unless the defendant
requests that they be tried
separately......'
27. The expression 'the same offence',
'substantially the same offence' 'in
effect the same offence' or 'practically
the same', have not done much to lessen
the difficulty in applying the tests to
identify the legal common denominators
of 'same offence'. Friedland in Double
Jeopardy (Oxford 1969) says at p.108:
'The trouble with this approach is
that it is vague and hazy and
conceals the thought processes of
the court. Such an inexact test must
depend upon the individual
impressions of the judges and can
give little guidance for future
decisions. A more serious
consequence is the fact that a
decision in one case that two
offences are "substantially the
same" may compel the same result
in another case involving the same
two offences where the
circumstances may be such that a
second prosecution should be
permissible....'
28. In order that the prohibition is
attracted the same act must constitute
an offence under more than one Act. If
there are two distinct and separate
offences with different ingredients under
two different enactments, a double
punishment is not barred. In Leo Roy
Frey v. Superintendent, District Jail, the
question arose whether a crime and the
offence of conspiracy to commit it are
different offences. This Court said : (AIR
p. 121, para 4 : SCR p.827)
'4.......The offence of a
conspiracy to commit a crime is a
different offence from the crime that
is the object of the conspiracy
because the conspiracy precedes the
commission of the crime and is
complete before the crime is
attempted or completed, equally the
crime attempted or completed does
not require the element of
conspiracy as one of its ingredients.
They are, therefore, quite separate
offences.' "
17] In the instant case, submission of applicants is that
on identical set of facts complaint under the provisions of
Central Excise Act has been instituted and on the same set
of allegations, offences under the Penal Law have been
invoked. On perusal of copy of complaint No.1955/2009, it
can be seen that the complaint is under Sections 9, 9AA and
10 of the Central Excise Act, 1944. The prayer is to
prosecute the accused under these sections. For ready
reference the provisions of Sections 9, 9AA and 10 are
referred below :
Section 9 : Offences and penalties .- (1)
Whoever commits any of the following
offences, namely: -
(a) contravenes any of the provisions of
section 8 or of a rule made under clause (iii) or
clause (xxvii) of sub-section (2) of section 37;
(b) evades the payment of any duty
payable under this Act;
(bb) removes any excisable goods in
contravention of any of the provisions of this
Act or any rules made thereunder or in any
way concerns himself with such removal;
(bbb) acquires possession of, or in any way
concerns himself in transporting, depositing,
keeping, concealing, selling or purchasing, or
in any other manner deals with, any excisable
goods which he knows or has reason to believe
are liable to confiscation under this Act or any
rule made thereunder;
(bbbb) contravenes any of the provisions of
this Act or the rules made thereunder in
relation to credit of any duty allowed to be
utilised towards payment of excise duty on
final products;
(c) fails to supply any information which
he is required by rules made under this Act to
supply, or (unless with a reasonable belief, the
burden of proving which shall be upon him,
that the information supplied by him is true)
supplies false information;
(d) attempts to commit, or abets the
commission of, any of the offences mentioned
in clauses (a) and (b) of this section;
shall be punishable, -
(i) in the case of an offence relating to any
excisable goods, the duty leviable thereon
under this Act exceeds fifty lakh of rupees,
with imprisonment for a term which may
extend to seven years and with fine :
Provided that in the absence of
special and adequate reasons to the contrary
to be recorded in the judgment of the Court
such imprisonment shall not be for a term of
less than six months;
(ii) in any other case, with imprisonment
for a term which may extent to three years or
with fine or with both.
(2) If any person convicted of an offence
under this section is again convicted of an
offence under this section, then, he shall be
punishable for the second and for every
subsequent offence with imprisonment for a
term which may extend to seven years and
with fine :
Provided that in the absence of
special and adequate reasons to the contrary
to be recorded in the judgment of the Court
such imprisonment shall not be for a term of
less than six months.
(3) For the purposes of sub-sections (1)
and (2), the following shall not be considered
as special and adequate reasons for awarding
a sentence of imprisonment for a term of less
than six months, namely :-
(i) the fact that the accused has been
convicted for the first time for an offence
under this Act;
(ii) the fact that in any proceeding under
this Act, other than a prosecution, the accused
has been ordered to pay a penalty or the
goods in relation to such proceedings have
been ordered to be confiscated or any other
action has been taken against him for the
same act which constitutes the offence;
(iii) the fact that the accused was not the
principal offender and was acting merely as a
carrier of goods or otherwise was a secondary
party in the commission of the offence;
Section 9AA : Offences by companies.- (1)
Where an offence under this Act has been
committed by a company, every person who,
at the time the offence was committed was in
charge of, and was responsible to, the
company for the conduct of the business of the
company, as well as the company, shall be
deemed to be guilty of the offence and shall
be liable to be proceeded against and
punished accordingly :
Provided that nothing contained in
this sub-section shall render any such person
liable to any punishment provided in this Act, if
he proves that the offence was committed
without his knowledge or that he had
exercised all due diligence to prevent the
commission of such offence.
(2) Notwithstanding anything contained
in sub-section (1), where an offence under this
Act has been committed by a company and it
is proved that the offence has been committed
with the consent or connivance of, or is
attributable to any neglect on the part of, any
director, manager, secretary or other officer of
the company, such director, manager,
secretary or other officer shall also be deemed
to be guilty of that offence and shall be liable
to be proceeded against and punished
accordingly.
Explanation. -- For the purposes of this
section, -
(a) "company" means any body corporate and
includes a firm or other association of
individuals; and
(b) "director" in relation to a firm means a
partner in the firm.
Section 10 : Power of Courts to order
forfeiture. -- Any Court trying an offence
under this Chapter may order the forfeiture to
Government of any goods in respect of which
the Court is satisfied that an offence under this
Chapter has been committed, and may also
order the forfeiture of any receptacles,
packages or coverings in which such goods are
contained and the animals, vehicles, vessels or
other conveyances used in carrying the goods
and any implements or machinery used in the
manufacture of the goods.
18] So far as proceedings in Regular Criminal Case
No.2303/2007 arising out of Charge-sheet No.5/2007 in
Crime No.RCNAG 2005A0012 are concerned, the same is for
the offences punishable under Sections 120-B, 420, 468 and
471 of the Indian Penal Code. Needless to state that the
offences alleged in FIR are the distinct and separate
offences against the same persons and even if they are
appearing to be identical to the allegations in complaint
under the Central Excise Act, cannot be said to be hit by the
doctrine of double jeopardy, as they are not the same
offence. As such, in our opinion, provisions of Section 300 of
the Code of Criminal Procedure and Section 26 of the
General Clauses Act are not attracted in the facts of the
present case and we find that second objection raised by the
learned counsel for the applicants holds no water.
19] (iii) Considering the offences alleged,
aggrieved person ought to have lodged the report
and based on source information not disclosed at any
time, complainant has no locus to lodge report
alleging the offences of cheating, forgery etc.:
Another ground on which criminal prosecution is
assailed is regarding the locus of complainant to lodge the
complaint. Submission of the applicants is that FIR is lodged
on the basis of source information which has never been
disclosed at any time and for the offences particularly of
cheating and forgery, it was incumbent on the prosecution
agency to disclose the source of information and the name
of informant. In support thereof, reliance is placed on the
decisions of the Hon'ble Supreme Court in Joseph
Salvaraja .vs. State of Gujarat and others, (2011) 7
SCC 59 and Mohammed Ibrahim and others .vs. State
of Bihar and another, (2009) 8 SCC 751.
20] On going through both the decisions of the Hon'ble
Supreme Court, it can be seen that the facts were not
identical to the present controversy and in the given facts
and circumstances of the case, the Hon'ble Supreme Court
in the first case held that FIR was an abuse of process of
law, dispute was purely of civil nature, commission of
criminal offence to wreak vengeance was alleged and in
such a case refusal of High Court to quash FIR under Section
482 of the Code of Criminal Procedure with liberty to file
discharge application was to be quashed and set aside.
In another decision, the observations of Hon'ble
Supreme Court were that criminal courts should ensure that
criminal proceedings are not misused for settling scores or
pressurising parties to settle civil disputes. The ingredients
of the offence of cheating and forgery defined under Section
415 and punishable under Section 420 of the Indian Penal
Code, came to be reiterated by the Hon'ble Supreme Court
in the said case.
21] In the case on hand, FIR has been lodged by
Superintendent of Police, CBI, Nagpur. Learned counsel
refers to the provisions of Section 39 of the Code of Criminal
Procedure and attempts to demonstrate that offences
relating to cheating and forgery are not covered by this
provision and, therefore, it was incumbent on the aggrieved
person to come forward and lodge report. Section 39
requires public to give information of certain offences and
speaks that every person aware of the commission of, or of
the intention of any other person to commit any offence
punishable under the section mentioned in Section 39 shall
forthwith give information to the nearest Magistrate or
public officer of such commission or intention. The offences
under Sections 420, 468 and 471 of the Indian Penal Code
are cognizable. As these offences are cognizable, offence
alleged under Section 120-B of the Indian Penal Code is also
cognizable. Section 154 of the Code of Criminal Procedure
relates to information in cognizable cases. The provisions
of Section 154 of Cr.P.C. read thus :
154. Information in cognizable cases.- (1)
Every information relating to the commission
of a cognizable offence, if given orally to an
officer in charge of a police station, shall be
reduced to writing by him or under his
direction, and be read over to the informant;
and every such information, whether given in
writing or reduced to writing as aforesaid, shall
be signed by the person giving it, and the
substance thereof shall be entered in a book to
be kept by such officer in such form as the
State Government may prescribe in this behalf.
(2) A copy of the information as
recorded under sub-section (1) shall be given
forthwith, free of cost, to the informant.
(3) Any person aggrieved by a
refusal on the part of an officer in charge of a
police station to record the information
referred to in sub-section (1) may send the
substance of such information, in writing and
by post, to the Superintendent of Police
concerned who, if satisfied that such
information discloses the commission of a
cognizable offence, shall either investigate the
case himself or direct an investigation to be
made by any police officer subordinate to him,
in the manner provided by this Code, and such
officer shall have all the powers of an officer in
charge of the police station in relation to that
offence.
22] The proposition of law relating to information in
cognizable cases is well settled and any person orally or in
writing can set criminal law into motion. In this
background, we do not find any infirmity regarding the locus
to lodge the report. The third contention raised by the
learned counsel for the applicants is, therefore, negatived in
the above background.
23] (iv) Company is not arraigned as an
accused and without arraigning company as an
accused, the prosecution against applicants is not
maintainable :
One of the grounds on which criminal prosecution
is attacked is that company is not arraigned as an accused
and prosecution is launched only against the Directors of the
Company. To substantiate the submission, reliance is placed
on the decision of the Hon'ble Supreme Court in Aneeta
Hada .vs. Godfather Travels and Tours Private
Limited, (2012) 5 SCC 661. The dispute in this case was
under Section 138 of the Negotiable Instruments Act, 1881.
Company was not arraigned as an accused and only officers
of company were implicated. The Hon'ble Supreme Court
held that a distinction must be borne in mind between cases
where a company had not been made an accused and the
one where despite making it an accused, it cannot be
proceeded against because of a legal bar. Criminal liability
on account of dishonour of cheque in the case before the
Supreme Court was primarily on drawer company and
extended to its officers only when conditions incorporated in
Section 141 of the Negotiable Instruments Act could be
satisfied. In this background, the Hon'ble Supreme Court
held that for maintaining prosecution under Section 141,
arraigning of company as an accused is imperative.
24] In the present case, allegations of cheating and
forgery are in the personal capacity of the applicants. The
offences alleged being under the penal law element of mens
rea also needs to be considered. The question of company
sharing the criminal liability with its officers cannot be said
to be imperative in the present set of facts and
circumstances and particularly in view of the offences
alleged against the applicants. The facts are distinguishable.
We, therefore, do not find any merit in this contention also
raised by the learned counsel for the applicants.
ON MERITS
25] Next question that now remains for consideration
is whether FIR, chargesheet, and connecting papers thereto
make out a case against the applicants to proceed for the
offences alleged against them. It is significant to note that
allegations of criminal conspiracy have been levelled against
the applicants and three officers of the Central Excise and
Customs Department named above. It is the case of
prosecution that applicants - both the Directors of M/s. Eva
Tex Private Limited, diverted the material to the domestic
tariff area and by the aforesaid acts, caused loss of revenue
to the tune of Rs.71 Lacs by evading customs and central
excise duty. So far as the loss of revenue is concerned,
officer of Central Excise has instituted the complaint under
Sections 9, 9AA and 10 of the Central Excise Act, 1944.
When it comes to criminal prosecution and particularly
offence under Section 120-B of the Indian Penal Code,
allegations against applicants are that in connivance with
the officers of Customs and Central Excise, they forged the
documents, cheated the department by using the forged
documents as genuine knowing them that they are forged.
It is pertinent to note that the officers of Customs and
Central Excise against whom allegations made in FIR were
also involved in the offences under the Prevention of
Corruption Act, 1988. The sanction to prosecute those
officers came to be refused by the sanctioning authority
vide order dated 9.11.2006. After considering the entire
material placed before the sanctioning authority, the said
authority observed that CBI has not adduced any evidence
about the connivance of the officers with the unit in
perpetrating this fraud. Though it was further observed that
officers were surely negligent and lackadaisical in their
duties but in the absence of reasonable and cogent
evidence, authority found that it may not be correct to show
that they entered into criminal conspiracy warranting
prosecution against them.
26] We have perused the contents of FIR lodged on
28.9.2005. The offence occurred is in the year 2004. The
Central Excise Department has already taken care of by
instituting a complaint an evasion of Customs and Excise
duty. The grievance made in the complaint by Central Excise
Department are almost identical to the allegations in FIR.
We have already held above that the doctrine of double
jeopardy would not be attracted in the present case, but
since the allegations are almost common and particularly
the sanctioning authority did not find any evidence on close
scrutiny, we find that continuance of the criminal
prosecution against the applicants would be nothing but an
abuse of process of law. Hence, on merits applicants do
succeed and accordingly we pass the following order :
ORDER
(i) Both the criminal applications are allowed.
(ii) Rule is made absolute in terms of prayer clause (A)
of Criminal Application No.218/2015 and prayer clause (1) of
Criminal Application No.320/2015.
(iii) There shall be no order as to costs.
(Kum. Indira Jain, J.) (B.R. Gavai, J.)
.........
Gulande, PA
