Delhi High Court
Pradeep Kumar vs Y.S Kumar on 19 March, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 06.11.2019
Date of decision: 19.03.2020
+ CRL.M.C. 1609/2019, CRL.M.A. 6437/2019 & CRL.M.A.
10293/2019
PRADEEP KUMAR ..... Petitioner
Through: Mr.Vikas Pahwa, Sr. Advocate
along with Mr.Rajan Chawla,
Mr.Tanmaya Mehta, Mr.
Gautam Chauhan and Mr.
Shyam Singh, Advocates.
Versus
Y.S. KUMAR ..... Respondent
Through: Dr.Y.S. Kumar/ Respondent in
person.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J.
1. The petitioner vide the present petition under Section 482 of the
Cr.P.C., 1973 seeks the setting aside of the judgment dated 22.02.2019
of the learned ASJ-05, District South East, Saket Courts in Criminal
Revision No.520/2018 whereby the order of the learned MM-06,
District South East, Saket in CC No.636258/2016 (Earlier CC
No.117/2/16) titled as "Dr. Y.S. Kumar V. Amity Global Versity" qua
the allegations made in the complaint of the complainant i.e. the
respondent herein observed vide the order dated 08.06.2018 to the
effect that the same could not be brushed aside at the stage when the
matter was fixed for consideration on the aspect of taking of
cognizance and that an opportunity was to be given to the complainant
to lead evidence in support of his contentions and the matter was re-
notified for the pre-summoning complainant's evidence,- was upheld
and the revision petition filed by the present petitioner against the
order dated 08.06.2018 of the learned Trial Court, was dismissed.
2. It is essential to observe that vide paragraphs 2, 3 & 5 of the
order dated 08.06.2018, of the learned Metropolitan Magistrate-06,
South-East, Saket Courts, New Delhi facts put forth through the
complaint have been set forth as being:-
"2. Facts of the case, as made out from the complaint, are
that Amity University, Uttar Pradesh is a private
university. Amity Global Varsity P. Ltd. (hereinafter
referred to "the accused no.1") is a group company
running management courses in 13 schools by the name of
Amity Global Business School. In August-September 2012,
Director General of Central Excise Intelligence initiated
proceedings against Lucknow campus of Amity University
and accused no.1 for evasion of service tax. Two show
cause notices were issued and a demand of more than Rs.
23 Crore was raised on the basis that the courses run by
accused no.1 were not approved by any statutory
authority. During investigation, some employees of
accused no. 1, including Mr. U. Ramachandran (herein
after referred as "the accused no.9") stated that "Post
Graduate Programmes in Management" and "Graduate
Diploma in Business Administration" were certificate
courses for which no recognition from any statutory
authority was required. He further stated that no such
recognition from any statutory authority was obtained.
Similar statements were made by other employees of
accused no.1.
3. The complainant further alleged that since as per the
statement of accused no.9, the "Post Graduate Programme
in Management" and "Graduate Diploma in Business
Administration" were not approved by any statutory
authority, accused No.1 was required to pay service tax on
the fees received from the students. In its reply filed with
Commissioner of Service Tax, Nehru Place, New Delhi,
accused no.1 took a contrary stand stating that since the
courses have been approved by Amity University, Noida,
they were not liable to pay the service tax. Thus, the
complainant alleges that accused no. 1 forged certain
documents to avoid tax liability. The accused no.1 and
Amity University are guilt of offence for forgery and
cheating. A complaint in this regard was made at PS
Kalkaji on 26.08.2016 and to DCP, SE on 29.09.2016 but
no FIR was registered. Hence, the present complaint.
.........
5. The complainant argued that the proposed accused have
been issued show cause notices by the Director General of
Central Excise Intelligence and a demand of more than
Rs.23 crores was raised on them. On the basis that the
courses run by accused no.1 were not approved by any
statutory authority. In the reply filed by the accused no.1
with the Commissioner of Service Tax, Nehru Place,
accused no.1 took a contradictory stand their courses were
approved by Amity University, Noida and thus, they were
not entitled to pay any service tax. The complainant further
submitted that the accused are illegally having a campus
outside Delhi which is not permissible as per UGC terms
and conditions. He further submitted that even the students
of the accused have started challenging the credibility of
the degrees / certificates awarded by the accused. He
urged that in the certificates issued by the accused, it is
nowhere mentioned that the said courses were from distant
learning. The complainant further submitted that the
accused have opened several campuses throughout India,
most of which are being operated from small houses and
the students are being charged a very high fees. He further
argued that the Directors of the accused are drawing a
huge salary upto Rs.1.5 crores per year by cheating the
innocent students."
3. The contentions raised by the petitioner herein are put forth vide
paragraphs 4, 6, 7, 8 & 9 in the order dated 08.06.2018 of the learned
Trial Court to the effect:-
"4. It is relevant to note that counsel on behalf of
proposed accused have entered appearance though,
cognizance has not been taken yet and the proposed
accused have not been summoned.
(emphasis supplied)
.......
6. The Ld. counsel for the proposed accused asserted
their right to address arguments at this stage, claiming
that since the cognizance of the complaint itself is barred,
they intend to assist the Court on the point of law only.
7. The Ld. counsel for the proposed accused submitted
that the complaint itself is making no sense. He further
submitted that the matter with respect to allegations
levelled by the complainant is pending with the UGC
which shall take action in due course. So far as
embezzlement of service tax is concerned, he submitted
that the PIL filed by the complainant was dismissed by
the Hon'ble High Court on the ground that the
complainant had no locus standi to file the PIL. He
further informed that the show cause notices issued to the
accused have been stayed by the Hon'ble High court of
Allahabad. He further submitted that PIL filed by the
complainant on the same allegations was dismissed by
the Hon'ble Supreme court on 08.07.2016. After dismissal
of PIL, the complainant filed a complaint with PS
Defence Colony and thereafter, with PS Kalkaji. He
further submitted that no reliance on the documents filed
on record by the complainant can be placed as these are
not the complete documents and the complainant has only
picked up certain paragraphs. The ld. counsel for the
proposed accused further submitted that cognizance of
the complaint is barred in view of Section 14 of the
Excise Act which is made applicable to the Finance Act
1994 by way of Section 83 of the Finance Act. He further
submitted that cognizance is barred also under Section
195(1) (a) (i) of Cr.P.C. Reliance has been placed on C.
Muniyappan Vs. State of Tamilnadu (2010) 9 SCC 567,
SP Changalvarayuraya Naydu Vs. Jagannath (1994)(1)
SCC 1. AR Antalay U. Ramdas Sriniwas (1984) 2 SCC
500 T. G. Nichodemus Vs. State Crl RC No.211 of 1954,
Md. Sharma Vs. State of Bihar 2002 SCC Online Pat
570, Naresh Sridhar Mirajkar Vs. State of Maharashtra
AJR 1967 SCI.
8. Controverting the arguments of the Id. counsel for the
proposed accused, the complainant submitted that his
writ petition was dismissed only on the ground of locus
but in fact, the Hon'ble High Court had appreciated the
cause. He further submitted that he had given only
relevant paragraphs in the documents filed by him and
that he has filed the instant complaint for forgery
committed by the proposed accused for escaping their tax
liability and hence, cognizance is not barred. He clarified
that the accused have forged the minutes of meetings held
on 25.09.2005, 25.03.2007 and 07.06.2007. He explained
that had these minutes existed, Mr. U. Ramachandran
would have made a mention of these meetings in the reply
given by him to the DGCEI. He further submitted that the
proposed accused has no locus standi to address
arguments at this stage. Reliance has been placed on
Anju Chaudhary Vs. State of U. P. (2013) 6SCC 384,
Chandra Deo Singh Vs. Prokash Chandra Bose AIR
1963 SC 1430, Vijay Pratap Singh Vs. Dukh Haran
Nath 1962 Supp (2) SCR 675 and on Tata motors ltd.
Vs. State, CRL RVE.P 16/2008 decided on 12.02.2009,
by the Hon'ble High Court of Delhi.
9. The Ld. Counsel for the proposed argued that going by
the complainants allegations, it is a case of furnishing
false information to the Commissioner of Service Tax,
Delhi and in view of Section 89(1)(c) and Section 89(4)
r/w Section 90 of the Finance Act, 1994, cognizance
cannot be taken. He further submitted that till date, no
finding has come from the Commissioner of Service Tax,
Delhi that these documents are forged. He further
submitted that the complainant has misdescribed the
offence and thus, cognizance is barred under Section 195
Cr.P.C. Lastly, he submitted that even otherwise, the
allegations levelled by the complainant do not fall
withing the definition of "making a false document" under
Section 464 IPC."
4. Submissions of the complainant made in response were
recorded vide paragraph 10 of the order dated 08.06.2018 by the
learned Trial Court, which reads to the effect:-
"10. The complainant thereafter, submitted that Section
89(4) of Finance Act, 1994 is not applicable as the word
"information" used therein is with respect to various
figures / statistics required to be furnished. He further
submitted that Mr. U. Ramachandran was specifically
asked if the course are recognized by any "statutory"
authority which fact he denied whereas, admittedly.
Amity University is a statutory authority."
5. The learned Trial Court thus, observed vide paragraphs 12 & 13
of its order dated 08.06.2018 to the effect:-
"12. Perusal of the complaint shows that the complainant
primarily alleges that initially, as per the statement of
accused no.9, the courses of accused were not approved
by any statutory authority but in its reply filed with the
Commissioner of Service Tax, Nehru place accused no.1
took a contrary stand that the courses have been
approved by the Amity University, Noida. The
complainant is alleging forgery of minutes of meeting
dated 25.09.2005, 25.03.2007 and 07.06.2007 (referred to
by two proposed accused in the reply filed with
Commissioner of Service Tax, Delhi) and cheating by the
proposed accused by awarding fake degrees to numerous
students.
13. In my view, the allegations of the complainant cannot
be brushed aside at this stage and opportunity is to be
given to him to lead evidence in support of his
contentions."
6. The Revisional Court observed vide paragraphs 14, 15 & 16 of
its order dated 22.2.2019 to the effect:-
"14. The respondent-complainant has filed an application
under Section 156 (3) of the Code before the learned trial
court alleging that in August/September 2012, The
Directorate General of Central Excise Intelligence
(DGCEI), on the basis of information supplied by the
complainant, initiated proceedings against the Lucknow
Campus of Amity University, Uttar Pradesh, Noida (AU)
and Amity Global Varsity P. Ltd., Defence Colony, New
Delhi (AGVPL) for evasion of service tax, culminating into
issuance of two separate show cause notices. The AGVPL
was issued the notice of demand of more than 23 crore.
The basis of show cause notice was that the courses run by
AGVPL through Amity Global Business School (AGBS)
were not approved any statutory authority like the UGC,
AICTE etc. The present liability of AGVPL is around 125
crores. The total money collected by AGVPL as fees from
students so far is 400 crores. During investigations,
statements of many employees including Sh.
U.Ramachandran, the co-ordinator/Assistant Vice
President of AGBPL were recorded by the DGCEI and he
categorically stated that Post Graduate Programme in
Management (PGPM) and Graduate Programme in
Business Administration (GDBA) were just certifications,
and no recognition from any statutory authority was
required under the law. Therefore, they have not taken any
recognition from any statutory body. He also stated that
there was no agreement between AU and AGVPL. In reply
filed by AGVPL with the Commissioner of Service Tax,
Nehru Place, New Delhi, it is stated that its courses are
approved by AU, hence, it is not liable to service tax.
During investigations, neither Sh. U. Ramachandran nor
any other employee of AU and AGVPL said that the
courses were approved by AU. Therefore, it is clear that
both AU and AGVPL which belong to the same group
forged/back-dated documents to about their huge tax
liability.
15. It is also mentioned in the said application under
Section 156(3) of the Code that the Amity Group is a huge
education scam. Various other tax and criminal
proceedings are pending against them in various fora, with
their present service tax liability Rs.400 crore. The present
application, however, is confined to the forgery
committed by the group for escaping the liability in the
tax proceedings pending before the Commissioner of
Service Tax. Both AU and AGVPL are guilty of the
offences of forgery and cheating, making money running
into hundreds of crore, and cheating the State Exchequer
as well as innocent students. Two of promoters of the
Amity Group are interpol noticees, who fled Germany
after committing massive financial fraud there.
16. Revisionist is challenging the impugned order of taking
cognizance and posting the matter for pre-summoning
evidence. It is well settled that at the stage of taking
cognizance, Magistrate has to see only prima facie case.
As per Section 2(d) of the Code, the complaint may be oral
also. In the present case, respondent herein has filed a
written application under Section 156(3) of the Code and
on said application, cognizance had been taken and matter
had been posted for pre-summoning by the learned Trial
Court. The respondent herein has alleged in said
application about the forgery committed by AU and
AGVPL to avoid their huge tax liability. It is also alleged
in the application about forgery and cheating, making
money running into hundreds of crore, and cheating the
State Exchequer as well as innocent students.
(emphasis supplied)"
7. It was also inter alia observed by the Revisional Court vide
paragraphs 17, 18, 19, 20, 21 & 22 to the effect:-
"17. In Mehmood Ul Rehman (supra) relied upon by the
learned counsel for revisionist, it has been observed by the
Hon'ble Supreme Court that under Section 190(1)(b) of the
Code, the Magistrate has the advantage of a police report
and under Section 190(1)(c) of the Code, he has the
information or knowledge of commission of an offence, but
under Section 190(1)(a) of the Code, he has only a
complaint before him. It is also observed that the Code
hence specifies that "a complaint of facts which constitute
such offence", and therefore, if the complaint, on the face
of it, does not disclose the commission of any offence, the
Magistrate shall not take cognizance under Section 190(1)
(a) of the Code and the complaint is simply to be rejected.
Hence, as per this judgment, if complaint on the face of it
does not disclose commission of offence, Magistrate shall
not take cognizance under Section 190(1)(a) of the Code. It
means that if complaint on the face of it does disclose
commission of offence. Magistrate shall take cognizance
under Section 191(1)(a) of the Code.
18. Insofar as submission of learned counsel for revisionist
that for evading the payment of service tax etc., offence
under Section 89 of the Finance Act, 1994 attracts and as
per 89(4) of the said Act, there is a bar for prosecution
except the previous sanction of Chief Commissioner of the
Service Tax, is concerned, it is sufficient to say that
respondent has alleged about offence of forgery and
cheating punishable under the provisions of IPC. Further
insofar as a submission of learned counsel for revisionist
pertaining to bar of the cognizance under Section
195(1)(a)(i) for the offence under Section 176 and 177 IPC
is concerned, it is also sufficient to say that respondent has
alleged about offence of forgery and cheating punishable
under the provisions of IPC. Insofar as, submission of
learned counsel for the revisionist that complainant
himself has confined his complaint for the offence of
forgery is concerned, it is mentioned in para no. 8 of
complaint/application under Section 156(3) of the Code,
both AU and AGVPL are guilty of offences of forgery and
cheating, making money running into hundreds of crore
and cheating the state exchequer as well as innocent
students.
19. In para no. 12 of the impugned order, it is mentioned
that:-
"perusal of the complaint shows that the
complainant primarily alleges that initially,
as per the statement of accused no. 9, the
courses of accused were not approved by
any statutory authority but in its reply filed
with the Commissioner of Service Tax,
Nehru Place accused no.1 took a contrary
stand that the courses have been approved
by the Amity University, Noida. The
complainant is alleging forgery of minutes
of meeting dated 25.09.2005, 25.03.2007
and 07.06.2007 (referred to by two proposed
accused in the reply filed with
Commissioner of Service Tax, Delhi) and
cheating by the proposed accused by
awarding fake degrees to numerous
students ".
20. On perusal of the application/complaint under
Section 156(3) of the Code, I am of the view that learned
Metropolitan Magistrate has rightly taken the cognizance
and posted the matter for pre-summoning evidence
stating that allegations of the complainant cannot be
brushed aside at this stage and opportunity is to be given
to him to lead evidence in support of his contentions.
21. In complaint case, if after considering the statements
on oath (if any) of the complainant and of the witnesses
and the result of the inquiry or investigation (if any)
under Section 202, the Magistrate is of the opinion that
there is no sufficient ground for proceeding, he shall
dismiss the complaint under Section 203 of the Code.
Therefore, after taking cognizance. Magistrate is
empowered to dismiss the complaint under Section 203 of
the Code if he is of the opinion that there is no sufficient
ground for proceeding.
22. Needless to say that the learned Metropolitan
Magistrate will take into consideration all the facts and
circumstances of the case and the law applicable thereto
at the stage of Section 203/204 of the Code as the case
may be."
8. The contention sought to be raised by the petitioner through the
present petition is to the effect that the respondent being a disgruntled
former employee of the Amity Business School [ABS] Noida, a unit
of Amity University Uttar Pradesh whose services were discontinued
in September, 2007 due to repeated complaints filed by one lady staff
i.e. a Programme Leader with ABS, had filed false and frivolous RTI
applications, complaints to various authorities against the University
and threatened to defame the University, if his demands of payment of
huge amount of money and removal of certain officials from the
University were not met.
9. The petitioner submits that in August/September 2012, the
respondent, out of his grudge and mala fides against the University,
made a false and frivolous complaint against the University's
Lucknow campus and the Amity Global Varsity Pvt. Ltd. [AGV] an
educational institution, with the Director General of Central Excise
Intelligence [DGCEI], alleging evasion of service tax and thus on
22.04.2013, the DGCEI through its Addl. Director, issued a false,
baseless and legally misconceived show cause notice to the University
for levy of service tax by alleging its Lucknow Campus which is
operational from the date of establishment of the University as its
constituent unit, as not authorized under the law. The petitioner further
submits that vide order dated 30.05.2013, the Hon'ble Lucknow
Bench of the High Court of Judicature of Allahabad, stayed the
operation of the show cause notice issued by DGCEI against the
University, in the Writ Petition [MB] 4484/2013 filed by the
University, questioning the jurisdiction of DGCEI, to issue the said
show cause notice and that in July 2013, the DGCEI through its Addl.
Director issued a show cause notice to the AGV proposing to levy
service tax.
10. Inter alia the petitioner submits that on 06.05.2014, the
respondent filed a false and baseless complaint with the Addl.
Commissioner of Police [Crime & EO] against the University/AGV,
by alleging cheating on the basis of false and unsubstantiated
observations made in the show cause notice issued by DGCEI and that
the respondent from May 2014 to December 2014, repeatedly
contacted the officials of the parent body of the University in Defence
Colony and also met its officials under the guise of his alleged
grievances against the University. The petitioner submits that a Writ
Petition bearing W.P (C) No.3383/2015 filed as a PIL by the
respondent herein against the UOI, UGC, AICTE, the University and
the AGV, making false, frivolous and vexatious allegations, on the
basis of false, frivolous and unsubstantiated observations made in the
show cause notice was dismissed on 07.09.2015 by the Hon'ble
Division Bench of this Court by a detailed order on the ground of
locus and in view of pending proceedings before the Hon'ble
Allahabad High Court. The petitioner submits further that vide order
dated 30.10.2015, the review petition filed by the respondent against
the said judgment dated 07.09.2015 was also dismissed. The petitioner
has further submitted that on 08.07.2016, the S.L.P. filed by the
respondent against the judgment dated 07.09.2015 and order dated
30.10.2015 passed by the Hon'ble Division Bench of the High Court
of Delhi in W.P. No.3385/2015 was dismissed by the Hon'ble
Supreme Court and that thereafter on 26.08.2016, the respondent filed
a complaint with PS Kalkaji against the Petitioner, officials /
dignitaries of University / its sponsoring body and certain unconnected
person, falsely and baselessly alleging commission of offence of
forgery against University/AGV, relying on a reply filed by the AGV
before the Commissioner of Service Tax, Nehru Place, in a pending
service tax proceedings.
11. The petitioner submits that on 21.12.2015, the FIR bearing
No.493/2015, PS Defence Colony under Sections 387/506 of the
Indian Penal Code, 1860 was lodged against the respondent on the
complaints of the petitioner, pursuant to order dated 14.12.2015
passed by Ld. M.M.-09, South East, Saket Courts, on an application
u/s 156(3) of the Cr.P.C., 1973 filed by the petitioner on behalf of the
University. The petitioner further submits that after dismissal of the
writ petition of the respondent, on 05.02.2016, a complaint bearing
No.282/2016 was filed by the respondent against the petitioner
officials / dignitaries of University / its sponsoring body and certain
unconnected person, falsely alleging cheating, etc, making false,
frivolous and vexatious allegations, on the basis of false, frivolous and
unsubstantiated observations made in the show cause notice issued by
DGCEI.
12. The petitioner has further submitted that on 16.09.2016, Amity
University Uttar Pradesh (Amendment) Act 2016, was notified in the
Gazette of Uttar Pradesh, declaring the Lucknow Campus of the
University as its constituent unit/campus of the University from the
date of its establishment. The petitioner has also submitted that on
18.10.2016, the Respondent filed an application u/s 156 (3)Cr.P.C.
marked as CC.No.117/2/2016 with the Ld. MM-06, Distt. South East,
Saket Courts, Delhi for registration of an FIR in relation to the specific
allegations made by the respondent in complaint dated 06.05.2014 at
PS Defence Colony in CC No.282/2016 before the learned MM-09
vide paragraph 7 of the complaint, which reads to the effect:-
"the present application, however, is confined to the
forgery committed by the group for escaping the
liability in the tax proceedings pending before
Commissioner of service tax, Nehru Place, New
Delhi.",
with it having been submitted by the petitioner that the said
application under Section 156(3) of the Cr.P.C., 1973 was false,
frivolous, legally misconceived, actuated with mala fides and
vengeance and that the respondent has placed reliance on some
documents and filed selected pages which were part of the ongoing
adjudication of the AGV before the Commissioner Service Tax, Delhi,
which were ex-facie obtained though unlawful means with it having
been submitted on behalf of the petitioner to the effect:-
"In nutshell it is the case of Respondent in his
complaint and the documents filed that pursuant to his
information, AGV is facing a Service Tax adjudication
before the Commissioner, Service Tax, Nehru Place,
and proceedings have been initiated by Director
General of Central Excise Intelligence [DGCEI], in
2012, followed by a show cause notice. During
investigation before sending show cause notice, an
employee of AGV has allegedly stated that AGV has
not taken any recognition from any statutory body.
Respondent has relied upon response of AGV to SCN,
filed before Commissioner, Service Tax saying that
AGV's courses are approved by the Amity University. It
is in this background that the Respondent
conjecturally and baselessly alleged that forgery has
taken place in the service tax proceedings before the
Commissioner of Service Tax."
13. The petitioner has further submitted that on 17.12.2016, PS
Kalkaji filed a status report in CC. No. 117/2/2016 that the matter
related to DGCEI and in view of previous cases filed by the
respondent, the complaint is not maintainable and vide order dated
22.03.2017, the learned MM-06 in CC. No. 117/2/16 observed that
the affidavit accompanying the application u/s 156 (3) Cr.P.C of the
respondent, was not satisfactory and directed him to file a fresh
affidavit whereby on 08.05.2017, the Ld. M.M.-09, Distt. South East,
Saket Court, Delhi, in FIR No.493/15, took cognizance of the charge
sheet filed against the respondent.
14. The petitioner further submits that on 30.05.2017, the
respondent filed an affidavit pursuant to order dated 22.03.2017
passed by the Ld. MM-06 in CC. No. 117/2/16 and submissions were
made on behalf of the petitioner qua the legal bar of registration of
FIR and for taking cognizance on the application under Section 156(3)
of the Cr.P.C., 1973 of the respondent submitting to the effect that the
FIR could not be registered and no cognizance could be taken on
allegations made by the respondent, in as much as, it was sought to be
contended on behalf of the petitioner to the effect:-
"(i) The Service Tax proceedings are governed by the
Chapter V of the Finance Act 1994, which inter alia
provides and deals with the entire scheme of substantive
and procedural aspects of recovery of service tax.
(ii) As per section 83 of the chapter V of the Finance Act
1994, various provisions of Excise Act 1944 are made
applicable to the service tax proceedings, which includes
section 14 of the Excise Act, whereby the Central Excise
Officer conducts the investigation before issuing show
cause notice. As per section 14(2) read with sub-Section (3)
such inquiry shall be deemed to be a judicial proceeding
within the meaning of section 193 and section 228 IPC.
(iii) Section 89 of the Finance Act provides for various
offences and penalty, and as per which the evasion of
service tax is an offence u/s 89 (1)(a) and the supply of false
information is an offence u/s 89(1)(c).
(iv) As per section 89 (4) of the Finance Act a person shall
not be prosecuted without the sanction of the Principal
Chief Commissioner of Central Excise and Chief
Commissioner of Central Excise.
(v) Section 195 (1) (a) (i) Cr.P.C bars the cognizance of the
offences for contempt of lawful authority of public servants
i.e. offences punishable u/s 172 to 188 IPG, and section 195
(1) (b) bars the cognizance of offences u/s 193 to 228 IRC.
The act of furnishing false information is punishable u/s
177 and omitting to give information to public servant is
punishable u/s 176."
15. The petitioner further submits that on 31.01.2018 the
Commissioner, Service Tax, vide its order erroneously confirmed the
demand of service tax against the AGV, qua which the petitioner
submits that no adverse findings of forgery, fabrication, etc, was
rendered therein against the AGV as alleged by the Respondent in his
CC No.117/2/16, now CC No.636258/16 and that though vide order
dated 23.02.2018, the learned MM-06 dismissed the application under
Section 156(3) of the Cr.P.C., 1973 in CC No. 117/2/16, however,
posted the case for further proceedings by impliedly treating the same
as a private complaint. The petitioner further submits that W.P.(MB)
4484/2013 filed by the University was disposed of giving an
opportunity to the petitioner to apprise the authorities concerned of the
DGCEI through Commissioner of Central Excise, Lucknow about the
AUUP (Amendment) Act 2016, so that a fresh decision could be taken
and submitted that on 11.05.2018, the AGV filed its statutory appeal
before CESTAT against the order dated 31.01.2018 by the
Commissioner Service Tax, which appeal is still pending.
16. The petitioner has further submitted that on 27.09.2018, the
Commissioner, CGST and Central Excise, Lucknow, dropped the
proceedings initiated vide Show Cause Notice dated 22.04.2013,
issued by DGCEI to Amity University Lucknow, Campus.
17. Through its reply, the respondent has inter alia submitted that
the petitioner has no locus to frustrate/stall the proceedings initiated by
the respondent. Reliance was placed on behalf of the respondent on
the verdict of the Hon'ble Supreme Court in "Chandra Deo Singh vs
Prokash Chandra Bose @ Chabi Bose & Anr." 1964 (1) SCR 639
wherein it was observed to the effect:-
"it seems to us clear from the entire scheme of Ch. XVI
of the Code of Criminal Procedure that an accused
person does not come into the picture at all till process is
issued. This does not mean that he is precluded from
being present when an enquiry is held by a Magistrate.
He may remain present either in person or through a
counsel or agent with a view to be informed of what is
going on. But since the very question for consideration
being whether he should be called upon to face an
accusation, he has no right to take part in the
proceedings, nor has the Magistrate any jurisdiction to
permit him to do so. "
to submit thus, that the petitioner not being a party to the proceedings
in the Trial Court, cannot invoke inherent jurisdiction of this Court.
18. Reliance was also placed on behalf of the respondent on the
observations of the Hon'ble Supreme Court in "State of Haryana &
Ors. vs Bhajan Lal & Ors." 1992 Supp. (1) SCC 335 as made in
paragraph 103 thereof, which reads to the effect:-
"103. We also give a note of caution to the effect that the
power of quashing a criminal proceeding should be
exercised very sparingly and with circumspection and that
too in the rarest of rare cases; that the court will not be
justified in embarking upon an enquiry as to the reliability
or genuineness or otherwise of the allegations made in the
FIR or the complaint and that the extraordinary or inherent
powers do not confer an arbitrary jurisdiction on the court
to act according to its whim or caprice."
19. Written synopses were submitted on behalf of either side which
have been perused and considered.
20. On behalf of the petitioner, it has been submitted that the
criminal proceedings in CC No.636258/2019 out of which the
impugned order arises, are liable to be quashed as no offence of
forgery is made out with it having been submitted on behalf of the
petitioner that even the alleged forged document has not been placed
on the record of the learned Trial Court and what had been placed on
the Trial Court record were only the copies of service tax proceedings
in selected pages which were unattested and uncertified and without
disclosing the source thereof. It has been submitted on behalf of the
petitioner that the criminal proceedings initiated by the respondent
before the learned Trial Court are void ab-initio being without
jurisdiction.
21. A catena of verdicts has been relied upon on behalf of the
petitioner placing reliance on the verdict of the Hon'ble Supreme
Court in "C.Muniappan & Ors. Vs. State of Tamil Nadu" (2010) 9
SCC 567 in relation to the aspect of proceedings in which the
cognizance is taken despite submitting that the legal bar u/s 195
Cr.P.C. is without jurisdiction and void ab-initio; test of whether there
is evasion or non-compliance with S.195 Cr.P.C. or not, is whether the
facts disclosing primarily or essentially an offence for which the
complaint is required from the public servant and that Section 195
Cr.P.C. cannot be evaded by mis-describing the offence and that the
cognizance of such an offence cannot be taken by misdescribing the
offence or by putting a wrong label on it and that the legislative intent
behind the provision of Section 195 Cr.P.C. is that the individual
should not face criminal prosecution instituted by persons actuated
with malice, ill-will etc. with specific reference to observations in
paragraphs 27 to 33 of the said verdict, which read to the effect:-
"27. Section 195 CrPC reads as under:
"195. Prosecution for contempt of lawful authority of
public servants, for offences against public justice and for
offences relating to documents given in evidence.--(1) No
court shall take cognizance--
(a)(i) of any offence punishable under Sections 172 to 188
(both inclusive) of the Penal Code, 1860, or
***
except on the complaint in writing of the public servant
concerned or of some other public servant to whom he is
administratively subordinate;"
28. Section 195(1)(a)(i) CrPC bars the court from taking
cognizance of any offence punishable under Section 188 IPC
or abetment or attempt to commit the same, unless, there is a
written complaint by the public servant concerned for
contempt of his lawful order. The object of this provision is to
provide for a particular procedure in a case of contempt of
the lawful authority of the public servant. The court lacks
competence to take cognizance in certain types of offences
enumerated therein. The legislative intent behind such a
provision has been that an individual should not face
criminal prosecution instituted upon insufficient grounds by
persons actuated by malice, ill will or frivolity of disposition
and to save the time of the criminal courts being wasted by
endless prosecutions. This provision has been carved out as
an exception to the general rule contained under Section 190
CrPC that any person can set the law in motion by making a
complaint, as it prohibits the court from taking cognizance of
certain offences until and unless a complaint has been made
by some particular authority or person. Other provisions in
CrPC like Sections 196 and 198 do not lay down any rule of
procedure, rather, they only create a bar that unless some
requirements are complied with, the court shall not take
cognizance of an offence described in those sections.
(Vide Govind Mehta v. State of Bihar [(1971) 3 SCC 329 :
1971 SCC (Cri) 608 : AIR 1971 SC 1708] , Patel Laljibhai
Somabhai v. State of Gujarat [(1971) 2 SCC 376 : 1971
SCC (Cri) 548 : AIR 1971 SC 1935] , Surjit Singh v. Balbir
Singh [(1996) 3 SCC 533 : 1996 SCC (Cri) 521] , State of
Punjab v. Raj Singh [(1998) 2 SCC 391 : 1998 SCC (Cri)
642] , K. Vengadachalam v. K.C. Palanisamy [(2005) 7 SCC
352 : 2005 SCC (Cri) 1673] and Iqbal Singh
Marwah v. Meenakshi Marwah [(2005) 4 SCC 370 : 2005
SCC (Cri) 1101] .)
29. The test of whether there is evasion or non-compliance
with Section 195 CrPC or not, is whether the facts disclose
primarily and essentially an offence for which a complaint of
the court or of a public servant is required. In Basir-ul-
Haq v. State of W.B. [AIR 1953 SC 293 : 1953 Cri LJ 1232]
and Durgacharan Naik v. State of Orissa [AIR 1966 SC
1775 : 1966 Cri LJ 1491] , this Court held that the
provisions of this section cannot be evaded by describing the
offence as one being punishable under some other sections of
IPC, though in truth and substance, the offence falls in a
category mentioned in Section 195 CrPC. Thus, cognizance
of such an offence cannot be taken by misdescribing it or by
putting a wrong label on it.
30. In M.S. Ahlawat v. State of Haryana [(2000) 1 SCC 278
: 2000 SCC (Cri) 193 : AIR 2000 SC 168] this Court
considered the matter at length and held as under: (SCC p.
282, para 5)
"5. ... Provisions of Section 195 CrPC are mandatory and no
court has jurisdiction to take cognizance of any of the
offences mentioned therein unless there is a complaint in
writing as required under that section."
(emphasis added)
31. In Sachida Nand Singh v. State of Bihar [(1998) 2 SCC
493 : 1998 SCC (Cri) 660] this Court while dealing with this
issue observed as under: (SCC pp. 497-98, para 7)
"7. ... Section 190 of the Code empowers 'any
Magistrate of the First Class' to take cognizance of
'any offence' upon receiving a complaint, or police
report or information or upon his own knowledge.
Section 195 restricts such general powers of the
Magistrate, and the general right of a person to move
the court with a complaint is to that extent curtailed.
It is a well-recognised canon of interpretation
that provision curbing the general jurisdiction of the
court must normally receive strict
interpretation unless the statute or the context
requires otherwise...."
(emphasis supplied)
32. In Daulat Ram v. State of Punjab [AIR 1962 SC 1206 :
(1962) 2 Cri LJ 286] this Court considered the nature of the
provisions of Section 195 CrPC. In the said case, cognizance
had been taken on the police report by the Magistrate and the
appellant therein had been tried and convicted, though the
public servant concerned, the Tahsildar, had not filed any
complaint. This Court held as under: (AIR pp. 1207-08,
paras 4-5)
"4. ... The cognizance of the case was therefore
wrongly assumed by the court without the complaint
in writing of the public servant, namely, the
Tahsildar in this case. The trial was thus without
jurisdiction ab initio and the conviction cannot be
maintained.
5. The appeal is, therefore, allowed and the
conviction of the appellant and the sentence passed
on him are set aside."
(emphasis added)
33. Thus, in view of the above, the law can be summarised to
the effect that there must be a complaint by the public servant
whose lawful order has not been complied with. The
complaint must be in writing. The provisions of Section 195
CrPC are mandatory. Non-compliance with it would vitiate
the prosecution and all other consequential orders. The court
cannot assume the cognizance of the case without such
complaint. In the absence of such a complaint, the trial and
conviction will be void ab initio being without jurisdiction.".
Reliance was also placed on behalf of the petitioner on the verdict of
this Court in "Mohan Kukreja Vs. State" 2019 SCC Online Del 6398
in relation to the aspect of proceedings in which the cognizance was
taken despite legal bar u/s 195 Cr.P.C. being without jurisdiction and
void ab-initio with specific reference to observations in paragraphs 16
& 17 which read to the effect:-
"16. As noticed above, subject complaint does not satisfy the
requirements of Section 195 Cr.P.C. and, accordingly, the
Trial Court could not have taken cognizance of the offence
under Section 188 IPC either on the final report or on the
supplementary chargesheet filed by the prosecution.
17. Since the subject proceedings suffer from infraction of
Section 195 Cr.P.C., the impugned orders dated 09.12.2016
and 14.11.2017 cannot be sustained and, accordingly, the
action taken by the prosecution against the petitioner for the
offence under Section 188 IPC is rendered void ab
initio being against the dictum of the Supreme Court
in Daulat Ram v. State of Punjab (1962) Supp. 2 SCR
812.".
Reliance was also placed on behalf of the petitioner on the verdict of
the Hon'ble Supreme Court in "M.L. Sethi Vs. R.P. Kapur" AIR 1967
SC 528 in relation to the aspect of the bar u/s 195 Cr.P.C. is to be seen
at the time of taking cognizance, which must be examined at the said
stage by the Magistrate with specific reference to observations in
paragraph 9 of the said verdict, which reads to the effect:-
"9. In dealing with this question of law, the important aspect
that has to be kept in view is that the point of time at which
the legality of the cognizance taken has to be judged is the
time when cognizance is actually taken under Section 190
CrPC Under the Code of Criminal Procedure which applies
to trials of such cases, the only provision for taking
cognizance is contained in Section 190. Section 195, which
follows that section, is in fact, a limitation on the unfettered
power of a Magistrate to take cognizance under Section 190.
Under the latter section, cognizance of any offence can be
taken by any Presidency Magistrate, District Magistrate or
Sub-Divisional Magistrate, and any other Magistrate
specially empowered in this behalf (a) upon receiving a
complaint of facts which constitute such offence; (b) upon a
report in writing of such facts made by any police officer;
and (c) upon information received from any person other
than a police officer, or upon his own knowledge or suspicion
that such offence has been committed. In the present case, the
Judicial Magistrate at Chandigarh had before him the
complaint filed by the respondent, and if Section 190 stood by
itself he was competent to take cognizance of it under clause
(a) of sub-section (1) of that section. This power of taking
cognizance was, however, subject to the subsequent
provisions contained in the Code of Criminal Procedure
including that contained in Section 195. Sub-section (1) of
Section 195, which is relevant for our purposes, is
reproduced below:
"195. (1). No court shall take cognizance -- (a) of
any offence punishable under Sections 172 to 188
of the Indian Penal Code, except on the complaint
in writing of the public servant concerned, or of
some other public servant to whom he is
subordinate;
(b) of any offence punishable under any of the
following sections of the same Code, namely,
Sections 193, 194, 195, 196, 199, 200, 205, 206,
207, 208, 209, 210, 211 and 228, when such
offence is alleged to have been committed in, or in
relation to, any proceeding in any court, except on
the complaint in writing of such court or of some
other court to which such court is subordinate; or
(c) of any offence described in Section 463 or
punishable under Section 471, Section 475 or
Section 476 of the same Code, when such offence
is alleged to have been committed by a party to
any proceeding in any court in respect of a
document produced or given in evidence in such
proceeding, except on the complaint in writing of
such court, or of some other court to which such
court is subordinate.
This sub-section thus bars any court from taking
cognizance of the offences mentioned in clauses (a), (b) and
(c), except when the conditions laid down in those clauses are
satisfied. In the case of an offence punishable under Section
211 IPC, the mandatory direction is that no court shall take
cognizance of any offence punishable under this section,
when such offence is alleged to have been committed in, or in
relation to, any proceeding in any court, except on the
complaint in writing of such court or of some other court to
which such court is subordinate. This provision in clause (b)
of sub-section (1) of Section 195 is thus clearly a limitation
on the power of the court to take cognizance under Section
190. Consequently, it is at the stage when the Magistrate is
taking cognizance under Section 190 that he must examine
the facts of the complaint before him and determine whether
his power of taking cognizance under Section 190 has or has
not been taken away by clause (b) of sub-section (1) of
Section 195 CrPC In the present case, therefore, at the time
when this complaint was filed by the respondent in the Court
of the Judicial Magistrate at Chandigarh, it was necessary
and incumbent on that Magistrate to examine whether his
power of taking cognizance of the offence was limited by the
provisions of Section 195(1)(b). He had, therefore, to
determine whether cognizance of this complaint charging the
appellant with commission of an offence under Section 211
IPC, could not be taken by him, because that offence was
alleged to have been committed in, or in relation to, any
proceeding in any court, and if he found that it was so,
whether a complaint in writing by such court or some other
court to which such court was subordinate was necessary
before he could take cognizance. Consequently, in deciding
this appeal, this Court has to examine whether on the date
when cognizance was taken by the Judicial Magistrate at
Chandigarh such cognizance was barred under Section
195(1)(b) CrPC, because the offence punishable under
Section 211 IPC, included in the complaint was alleged to
have been committed in, or in relation to, any proceeding in
any court."
Reliance was also placed on behalf of the petitioner on the verdict of
the Hon'ble Supreme Court in "State of Haryana Vs. Bhajan Lal"
1992 Supp (1) SCC 355 in relation to the aspect that the criminal
proceedings can be quashed if no offence is made out and/or
proceedings are attended with mala fides & to wreak vengeance or
where there is an express legal bar engrafted in the code/ any other act
to the institution/ continuation of proceedings with specific reference
to observations in paragraph 102 of the said verdict, which reads to the
effect:-
"102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of
the principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary
power under Article 226 or the inherent powers under
Section 482 of the Code which we have extracted and
reproduced above, we give the following categories of
cases by way of illustration wherein such power could be
exercised either to prevent abuse of the process of any
court or otherwise to secure the ends of justice, though it
may not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an exhaustive list
of myriad kinds of cases wherein such power should be
exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their face
value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the
accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation
by police officers under Section 156(1) of the Code except
under an order of a Magistrate within the purview of
Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR
or complaint and the evidence collected in support of the
same do not disclose the commission of any offence and
make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted in any of
the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the institution
and continuance of the proceedings and/or where there is
a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to private
and personal grudge.",
Reliance was placed on behalf of the petitioner on the verdict of the
Hon'ble Supreme Court in "Vineet Kumar & Anr. Vs. State of Uttar
Pradesh" (2017) 13 SCC 369 in relation to the aspect that criminal
proceedings can be quashed when there are materials to indicate that
the criminal proceeding has been maliciously instituted with ulterior
motives, and is attended with mala fides of complainant with specific
reference to observations in paragraph 41 of the said verdict, which
reads to the effect:-
"41. Inherent power given to the High Court under Section
482 CrPC is with the purpose and object of advancement of
justice. In case solemn process of Court is sought to be
abused by a person with some oblique motive, the Court has
to thwart the attempt at the very threshold. The Court cannot
permit a prosecution to go on if the case falls in one of the
categories as illustratively enumerated by this Court in State
of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal,
1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] . Judicial
process is a solemn proceeding which cannot be allowed to
be converted into an instrument of operation or harassment.
When there are materials to indicate that a criminal
proceeding is manifestly attended with mala fide and
proceeding is maliciously instituted with an ulterior motive,
the High Court will not hesitate in exercise of its jurisdiction
under Section 482 CrPC to quash the proceeding under
Category 7 as enumerated in State of Haryana v. Bhajan
Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC
335 : 1992 SCC (Cri) 426] , which is to the following effect:
(SCC p. 379, para 102)
"102. (7) Where a criminal proceeding is
manifestly attended with mala fide and/or where
the proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to private
and personal grudge."
Above Category 7 is clearly attracted in the facts of the
present case. Although, the High Court has noted the
judgment of State of Haryana v. Bhajan Lal [State of
Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC
(Cri) 426] , but did not advert to the relevant facts of the
present case, materials on which final report was submitted
by the IO. We, thus, are fully satisfied that the present is a fit
case where the High Court ought to have exercised its
jurisdiction under Section 482 CrPC and quashed the
criminal proceedings.",
Reliance was placed on behalf of the petitioner on the verdict of the
Hon'ble Supreme Court in "Mohd. Ibrahim V. State of Bihar" (2009)
8 SCC 751 in relation to the aspect of lack of the ingredients of
forgery being made out in the instant case submitting that, a person is
said to have made a "false document", if (i) he made or executed a
document claiming to be someone else or authorized by someone else;
or (ii) he altered or tampered a document; or (iii) he obtained a
document by practicing deception, or from a person not in control of
his senses, with specific reference to observations in paragraph 14 of
the said verdict which reads to the effect:-
"14. An analysis of Section 464 of the Penal Code shows
that it divides false documents into three categories:
1. The first is where a person dishonestly or fraudulently
makes or executes a document with the intention of causing
it to be believed that such document was made or executed
by some other person, or by the authority of some other
person, by whom or by whose authority he knows it was not
made or executed.
2. The second is where a person dishonestly or
fraudulently, by cancellation or otherwise, alters a
document in any material part, without lawful authority,
after it has been made or executed by either himself or any
other person.
3. The third is where a person dishonestly or
fraudulently causes any person to sign, execute or alter a
document knowing that such person could not by reason of
(a) unsoundness of mind; or (b) intoxication; or (c)
deception practised upon him, know the contents of the
document or the nature of the alteration.
In short, a person is said to have made a "false
document", if (i) he made or executed a document claiming
to be someone else or authorised by someone else; or (ii) he
altered or tampered a document; or (iii) he obtained a
document by practising deception, or from a person not in
control of his senses.",
submitting that thus no forged document exists in the instant case.
Reliance was placed on behalf of the petitioner on the verdict of this
Court in "Shashi Lata Khanna Vs. State of Delhi" 2005 (121) DLT
522 in relation to the aspect that prosecution of forgery without the
forged document on record is futile, with specific observations in
paragraph 6 of the said verdict, which reads to the effect:-
"6. In the case of K.V.R. Iyyanger v. State of Andhra
Pradesh, 1988 (2) CRIMES VIII 882 it was held, that in
order to establish an offence of forgery under section 463
IPC punishable under Section 465 IPC the presence of the
original document before the court concerned is necessary.
Copy or photo stat copy is not sufficient in order to establish
offence of forgery. In the present case also the original was
never produced in that court nor it was proved in the court in
accordance with law hence the offence of forgery or using the
said forged document has not been proved. Once the offence
of forgery is not proved there is no question of using the
forged document as genuine. Accordingly the accused
persons cannot even by convicted under Section
465/468/471/120-B of IPC.".
Reliance was placed on behalf of the petitioner on the verdict of the
Hon'ble Supreme Court in "Mehmood Ul Rehman Vs. Khazir
Mohammed Tunda & Ors." (2015) 12 SCC 420 in relation to the
aspect that if the complaint on the face of it does not disclose
commission of offence, the Magistrate shall not take cognizance under
S.190(1)(a) of the Cr.P.C., 1973, with specific observations in
paragraph 21 of the said verdict which reads to the effect:-
"21. Under Section 190(1)(b) CrPC, the Magistrate has the
advantage of a police report and under Section 190(1)(c)
CrPC, he has the information or knowledge of commission of
an offence. But under Section 190(1)(a) CrPC, he has only a
complaint before him. The Code hence specifies that "a
complaint of facts which constitute such offence". Therefore,
if the complaint, on the face of it, does not disclose the
commission of any offence, the Magistrate shall not take
cognizance under Section 190(1)(a) CrPC. The complaint is
simply to be rejected."
Reliance was placed on behalf of the petitioner on the verdict of this
Court in "Tej Kishan Sadhu Vs. State" (2013) 201 DLT 359 in
relation to the aspect that the petitioner, who has not yet been
summoned as an accused can challenge the order passed by the
learned Metropolitan Magistrate even at the pre-summoning stage
invoking the inherent power of this Court under Section 482 of the
Cr.P.C. or even under Articles 226 & 227 of the Constitution of India
or under Section 483 of the Cr.P.C., where the abuse of process of the
Court or miscarriage of justice is writ large or in other alluring
circumstances as detailed in the said judgment, with specific reference
to observations in paragraph 82(a) of the said verdict, which reads to
the effect:-
"82. In the light of the aforesaid discussion, relenting on the
import of the provisions involved, following answers would
set out the legal propositions as formulated in Para 4 above,
which are as under:
a) Whether the petitioner who has yet not been
summoned as an accused can challenge any order passed
by the learned Metropolitan Magistrate at the pre-
summoning stage, by invoking the powers under Section
482, Section 483 Cr.P.C. or Article 226 & 227 of the
Constitution of India.
• This query has been discussed in detail in the
paragraph nos. 37-51 of the aforesaid judgment. The
petitioner, who has not yet been summoned as an accused
can challenge the order passed by the learned Metropolitan
Magistrate even at the pre-summoning stage invoking the
inherent power of this Court under Section 482 of the
Cr.P.C., or even under Article 226 & 227 of the
Constitution of India or under Section 483 of the Cr.P.C.,
but the exercise of such a power can only be under an
extraordinary situation where the abuse of process of the
Court or miscarriage of justice is writ large or in other
alluring circumstances as discussed above.".
22. The respondent on the other hand placed reliance on the verdict
of the Hon'ble Supreme Court in "Chandra Deo Singh Vs. Prokash
Chandra Bose @ Chabi Bose &Anr." AIR 1963 SC 1430 with
specific reference to observations in paragraph 7 of the said verdict,
which reads to the effect:-
"7. Taking the first ground, it seems to us clear from the
entire scheme of Chapter XVI of the Code of Criminal
Procedure that an accused person does not come into the
picture at all till process is issued. This does not mean that he
is precluded from being present when an enquiry is held by a
Magistrate. He may remain present either in person or
through a counsel or agent with a view to be informed of
what is going on. But since the very question for
consideration being whether he should be called upon to face
an accusation, he has no right to take part in the proceedings
nor has the Magistrate any jurisdiction to permit him to do
so. It would follow from this, therefore, that it would not be
open to the Magistrate to put any question to witnesses at the
instance of the person named as accused but against whom
process has not been issued; nor can he examine any
witnesses at the instance of such a person. Of course, the
Magistrate himself is free to put such questions to the
witnesses produced before him by the complainant as he may
think proper in the interests of justice. But beyond that, he
cannot go. It was, however, contended by Mr Sethi for
Respondent 1 that the very object of the provisions of
Chapter XVI of the Code of Criminal Procedure is to prevent
an accused person from being harassed by a frivolous
complaint and, therefore, power is given to a Magistrate
before whom complaint is made to postpone the issue of
summons to the accused person pending the result of an
enquiry made either by himself or by a Magistrate
subordinate to him. A privilege conferred by these provisions
can, according to Mr Sethi, be waived by the accused person
and he can take part in the proceedings. No doubt, one of the
objects behind the provisions of Section 202 CrPC is to
enable the Magistrate to scrutinise carefully the allegations
made in the complaint with a view to prevent a person named
therein as accused from being called upon to face an
obviously frivolous complaint. But there is also another
object behind this provision and it is to find out what
material there is to support the allegations made in the
complaint. It is the bounden duty of the Magistrate while
making an enquiry to elicit all facts not merely with a view to
protect the interests of an absent accused person, but also
with a view to bring to book a person or persons against
whom grave allegations are made. Whether the complaint is
frivolous or not has, at that stage, necessarily to be
determined on the basis of the material placed before him by
the complainant. Whatever defence the accused may have can
only be enquired into at the trial. An enquiry under Section
202 can in no sense be characterised as a trial for the simple
reason that in law there can be but one trial for an offence.
Permitting an accused person to intervene during the enquiry
would frustrate its very object and that is why the legislature
has made no specific provision permitting an accused person
to take part in an enquiry. It is true that there is no direct
evidence in the case before us that the two persons who were
examined as court witnesses were so examined at the
instance of Respondent 1 but from the fact that they were
persons who were alleged to have been the associates of
Respondent 1 in the first information report lodged by
Panchanan Roy and who were alleged to have been arrested
on the spot by some of the local people, they would not have
been summoned by the Magistrate unless suggestion to that
effect had been made by counsel appearing for Respondent 1.
This inference is irresistible and we hold that on this ground,
the enquiry made by the enquiring Magistrate is vitiated. In
this connection, the observations of this court in Vadilal
Panchal v. Dattatraya Dulaji Ghadigaonkar [(1961) 1 SCR
1, at p 9] may usefully be quoted:
"The enquiry is for the purpose of ascertaining
the truth or falsehood of the complaint; that is,
for ascertaining whether there is evidence in
support of the complaint so as to justify the issue
of process and commencement of proceedings
against the person concerned. The section does
not say that a regular trial for adjudging the guilt
or otherwise of the person complained against
should take place at that stage, for the person
complained against can be legally called upon to
answer the accusation made against him only
when a process has issued and he is put on trial.",
to contend to the effect that an accused person does not come into the
picture at all in the entire scheme of Ch. XVI of the Code of Criminal
Procedure till the process is issued and though this does not mean that
the accused is precluded from being present when an inquiry is held
by a Magistrate but that permitting an accused person to intervene
during the inquiry under Section 202 of the CR.P.C., 1973 which
cannot in any sense be characterized as a trial, would frustrate the very
object and that is why the legislature has made no specific provision
permitting an accused person to take part in an inquiry.
23. Undoubtedly, as laid down by this Court in "Tej Kishan Sadhu
Vs. State and Ors." in CRL.M.C.292/2013 dated 02.05.2013, the legal
propositions formulated in the said verdict have been answered and it
has been laid down vide observations in paragraph 82 thereof to the
effect:-
"82. In the light of the aforesaid discussion, relenting on the
import of the provisions involved, following answers would
set out the legal propositions as formulated in Para 4 above,
which are as under:
a) Whether the petitioner who has yet not been
summoned as an accused can challenge any order passed
by the learned Metropolitan Magistrate at the pre-
summoning stage, by invoking the powers under Section
482, Section 483 Cr.P.C. or Article 226 & 227 of the
Constitution of India.
• This query has been discussed in detail in the
paragraph nos. 37-51 of the aforesaid judgment. The
petitioner, who has not yet been summoned as an accused
can challenge the order passed by the learned Metropolitan
Magistrate even at the pre-summoning stage invoking the
inherent power of this Court under Section 482 of the
Cr.P.C., or even under Article 226 & 227 of the
Constitution of India or under Section 483 of the Cr.P.C.,
but the exercise of such a power can only be under an
extraordinary situation where the abuse of process of the
Court or miscarriage of justice is writ large or in other
alluring circumstances as discussed above.
b) Whether after the amendment in Section 202 Cr.P.C, it
is incumbent on the Magistrate to hold an inquiry or
investigation where the accused is residing beyond the area
in which the Magistrate is exercising its jurisdiction.
• Answer to the aforesaid query is in the affirmative
subject to paragraph Nos. 61, 62, 63 of the aforesaid
judgment, as per Section 202 of the Cr.P.C, the inquiry or the
investigation is mandatory where the accused is residing
beyond the area in which the Magistrate is exercising its
jurisdiction.
c) Whether for directing an investigation to the police
under Section 202 Cr.P.C, the magistrate can direct a full-
fledged investigation in the same manner as can be done by
the police under Section 156(3) Cr.P.C.
• The Magistrate cannot direct a full-fledged inquiry or
investigation under Section 202 of the Cr.P.C. akin to the
investigation which can be directed under Section 156(3) of
the Cr.P.C. at the pre-cognizance stage. The aforesaid
discussion in paragraph no. 64 clearly expounds the clear
legal position as envisaged under Section 202 Cr.P.C
d) Whether under Section 202 Cr.P.C, the Magistrate can
direct the police or any other person to carry out their
investigation on the suggested lines.
• Unlike under Section 156(3) of the Cr.P.C., the
Magistrate being the master of inquiry under Section 202 of
the Code, can direct the police or any other person to collect
information on the line suggested by the Magistrate
restricting to the ambit of the complaint but without involving
the accused in any manner at such a pre mature stage which
would be against criminal jurisprudence.",
to thus, hold to the effect that the accused who has not been
summoned, can challenge the order passed by the learned MM
concerned even at the pre-summoning stage invoking the inherent
power of this Court under Section 482 of the Cr.P.C., 1973 or even
under Article 226 & 227 of the Constitution of India or under Section
483 of the Cr.P.C., 1973, but the exercise of such a power can only be
under an extraordinary situation where the abuse of the process of the
Court or miscarriage of justice is writ large or in other alluring
circumstances as detailed in the said judgment.
24. It is essential to observe that vide judgment dated 25.04.2016 of
this Court in case titled as "Zee News Ltd. Vs. State & Anr." reported
in 2016 SCC OnLine Del 2392, it has been observed vide paragraph
89 to the effect:-
"89. Thus, while a case which is pending at the stage of
inquiry may be transferred under Section 407 Cr.P.C., a case
which is still at the stage of investigation cannot be so
transferred by resort to Section 407 Cr.P.C. In the present
case, the police case arising out of FIR No. 240/2012 is still
at the stage of investigation. Consequently, the petitioner
cannot seek transfer of the police case under investigation to
any other court, including the court dealing with the private
complaint i.e. the complaint case. If the petitioner cannot
seek a transfer of the police case which is under
investigation, he cannot achieve the same objective by
seeking transfer of the complaint case to the court of the
learned MM who would have jurisdiction over the police
station where the police case is registered and is under
investigation. Reliance has been placed by Mr. Agarwal
on Rahmatullah (supra) to submit that "case" in clause (ii)
of Section 407(1) Cr PC cannot be given a narrow
interpretation and it would include a "case" at the stage of
investigation. However, even in Rahmatullah (supra), the
Allahabad High Court sought to invoke Article 227 of the
Constitution and in that regard referred to the decision
in Badruddin and Party v. State, 1992 (1) UP LB EC 639.
Thus, in my view, the decision in Rahmatullah (supra) does
not advance the case of the petitioner. No doubt, even at the
pre-summoning stage, the accused has been held to be
entitled to approach the court by invoking the inherent
power of the High Court under Section 482 Cr.P.C. or the
extraordinary jurisdiction of the Court under Article
226/227 of the Constitution of India, or under Section 483
of the Cr.P.C. However, as observed in Ganesh
Prasad (supra) and Tej Kishan (supra), the exercise of such
power could only be under extraordinary situations, where
the abuse of the process of the court, or miscarriage of
justice is writ large, or some other similar circumstances
exist. In the present case, the petitioner has not been able to
make out any such exceptional and extraordinary case
warranting this Court to exercise its jurisdiction under
Section 482 Cr.P.C. or 483 of the Cr.P.C. or Articles 226/227
of the Constitution of India to direct the transfer of the
complaint case to the Court within whose jurisdiction the FIR
No. 240/2012 has been registered, or to direct the transfer of
the case under police investigation to the court of the learned
MM dealing with the complaint case (private complaint).
Learned CMM has made a very pertinent observation in his
impugned order dated 31.03.2014 while dealing with the
application preferred by the petitioner-Sudhir Chaudhary
under Section 410 read with 219/220 Cr.P.C. While taking
note of the fact that the learned MM dealing with the
complaint case had not yet issued process, and the learned
MM dealing with the police case has not yet taken
cognizance and summoned the accused or any of them, the
learned CMM in the impugned order dated 31.03.2014 has
rightly observed that, "at this stage, there is no (sic.) clarity
about the offence and the accused". It is not even clear, at
that stage, as to which of the accused would be summoned in
either of the two cases, and for what offence. This being the
position, in my view, the learned CMM was right in
observing that it was pre-mature to jump to the conclusion
that the offence alleged are of the same transaction or of
same kind."
25. In the present case, it is essential to observe that the contention
sought to be raised on behalf of the petitioner is to the effect that in
view of the bar under Section 195(1)(b)(i) of the Cr.P.C., 1973 r/w
Section 83 of Chapter V of the Finance Act, 1994 r/w Section 14 of
Central Excise Act, 1944 and Section 89(4) of the Finance Act and
Section 195(1)(a)(i) r/w Section 176 & 177 of the Indian Penal Code,
1860 in terms of Section 134 of the Central Goods & Services Act,
2017, there is a complete embargo to the institution of prosecution for
alleged forgery committed in tax proceedings before the
Commissioner of Service Tax allegedly to avoid tax liability without
the requisite complaint in writing having been made of the public
servant concerned or the authority to which such public servant is
administratively subordinate to.
26. In relation to the said aspect, it is essential to observe that vide
the impugned order dated 08.06.2018 vide paragraph 12 thereof, it has
been observed to the effect that the complainant has alleged forgery of
minutes of meeting dated 25.09.2005, 25.03.2007 and 07.06.2007,
referred to by two of the proposed accused in their reply filed with the
Commissioner of Service Tax, Delhi with intent to cheat by awarding
of fake degrees to several students despite the factum that the courses
of the accused i.e. "Post Graduate Programmes in Management" and
"Graduate Diploma in Business Administration" were not approved by
any statutory authority, were stated to have been so approved by the
accused.
27. The Revisional Court also vide its impugned judgment as
already adverted to hereinabove has observed vide paragraph 18 of it
impugned verdict to the effect that the respondent had alleged of the
offence of forgery and cheating qua offences punishable under the
Indian Penal Code, 1860 and that thus, the allegations made in the
complaint could not be brushed aside and that an opportunity had to be
given to the respondent to lead evidence in support of his contentions
and that if after considering the statements on oath of the complainant
and of the witnesses and the result of any inquiry or investigation
under Section 202 of the Cr.P.C., 1973, the Magistrate is of the
opinion that there are no substantial grounds for proceeding, he shall
dismiss the complaint under Section 203 of the Cr.P.C., 1973 and that
the Magistrate is to take into consideration all the facts and
circumstances of the case and the law applicable at the stage of
consideration of proceedings under Sections 203 & 204 of the Cr.P.C.,
1973 as the case may be.
28. It is significant that though an averment was made through the
petition as was also submitted during the course of arguments
addressed that the Commissioner, CGST and Central Excise,
Lucknow, have in fact dropped the proceedings initiated vide Show
Cause Notice dated 22.04.2013 issued by the DGCEI to the Amity
University, Lucknow Campus on 27.09.2018, no such order dropping
the proceedings has been placed on the record by the petitioner.
29. In the circumstances, it is held that there are no exceptional
circumstances warranting interference in the impugned order of the
learned Trial Court and of the Revisional Court of the learned ASJ-05,
South East vide the impugned judgments dated 08.06.2018 &
22.02.2019 respectively, in as much as, the petitioner who has not yet
been summoned, in the given facts and circumstances of the instant
case cannot be held to have a right at the present pre-summoning stage
to invoke the inherent powers of this Court, in as much as, no
extraordinary circumstance as laid down by this Court in "Tej Kishan
Sadhu Vs. State and Ors." (supra) exist as observed vide paragraph
81 of the said verdict have been shown to be in existence.
30. In view thereof, the petition is dismissed. However, it is made
clear that the learned Trial Court would take into account the aspect of
applicability of Section 195 of the Cr.P.C., 1973 to offences, if any,
alleged to have been committed by the petitioner at the stage of
consideration of the proceedings in terms of Section 202, 203 & 204
of the Cr.P.C., 1973. Crl. M.A. No. 6437/2019 and Crl. M.A. No.
10293/2019 thus call for no further action and are accordingly
disposed of.
31. Copy of this order be sent to the learned Trial Court.
ANU MALHOTRA, J.
MARCH 19, 2020
'Neha Chopra'
