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PETITIONER:

STATE OF WEST BENGAL

Vs.

RESPONDENT:

NARAYAN K.PATODIA

DATE OF JUDGMENT: 06/04/2000

BENCH:

K.T. THOMAS & D.P. Mohapatra

JUDGMENT:

of 1999

Thomas J.

L.......T.......T.......T.......T.......T.......T.......T..J

Leave granted.

The High Court of Calcutta has quashed the FIR registered in

a Police Station mainly on the ground that the person who

forwarded the complaint to the police had no authority to do

so. The State of West Bengal has, therefore, filed this

Appeal by Special Leave. The FIR was registered for certain

offences under the Indian penal Code and West Bengal Sales

Tax Act 1994 (for short the `Sales Tax Act'). The complaint

which was made the basis for such an FIR contained the

allegations that respondent submitted two applications on

21.1.1998 before the Assistant Commissioner of Commercial

Taxes, Burdwan impersonating himself as one Mohan Agrawal

(478 Katwa Road, Hari Narainpur, Burdwan) who is a

fictitious person; respondent signed the applications in

the false name of the said Agrawal and described him as a

businessman dealing in spices under the trade name "Parbati

Traders." The applications were made in the Proforma

(Form-A) prescribed under the West Bengal Sales Tax

(Registration and Turnover) Rules 1957, and they were

appended with documents all of which were forged. On the

basis of the said fabricated documents respondent obtained

registration under the Sales Tax Act which entitled him to

make purchases at concessional rate of sales tax, and also

to receive permits for importing spices from outside the

State. On the strength of the registration so obtained the

respondent applied for the issue of five permits to import

spices the sales tax of which would have been 2.73 lacs. In

those applications again the respondent personated himself

to be the aforesaid fictitious Mohan Agrawal.

When the Bureau of Investigation formed by the Government of

West Bengal under the Sales Tax Act, got secret information

about the fraud played by the respondent they conducted some

discreet investigation and then it was revealed to them that

the respondent had committed the said forgery and

impersonation to defraud the government of huge sales tax

amount. It was further revealed that respondent had wangled

another registration on 1.12.1977 in the fictitious name of

Surendra Luhariwala who purportedly did business as

"Luhariwala Trading Company 33/1, N.S. Road Calcutta." By

using the said registration respondent carried on business

and defrauded the Government of sales tax to the tune of

Rupees thirty-two lakhs.

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The said complaint was presented by the Assistant

Commissioner of Commercial Taxes to the Deputy

Superintendent of Police who was then attached to the Bureau

of Investigation formed under the Sales Tax Act. The said

Deputy Superintendent, in turn, forwarded the complaint to

the officer in charge of Hare Street Police Station,

Calcutta with a request to "start a case under Sections 403,

409, 465, 468, 471, 419, 420 read with 120B of Indian Penal

Code and Section 88(1)(b)(6) and (7) of the Sales Tax Act,

1994 treating the complaint as FIR."

Pursuant thereto the Station House Officer of Hare Street

Police Station registered the FIR. Respondent, getting

scent of the same moved the City Civil Court, Calcutta for

anticipatory bail but that was rejected on 11.6.1998. He

then moved the High Court invoking its revisional and

inherent jurisdiction for quashing the FIR and on such

motion being made further investigation was stayed by the

High Court as per order dated 17.6.1998. Finally the FIR

was quashed as per the impugned judgment delivered by

learned single judge of the Calcutta High Court on

19.11.1998.

Learned single judge advanced the following reasoning, inter

alia, for quashing the FIR:

"Under Section 7 of the West Bengal Sales Tax Act, the

Bureau of Investigation constituted under the said Act is

the only competent authority to investigate in respect of

any offence under the said Act which means no other

authority can carry out investigation or hold inquiry into

any case of alleged or suspected evasion of tax as well as

malpractices connected therewith. It also appears that

under the provisions of Section 7(3) no complaint is

required to be presented before any authority as has been

done in the instant case but only a report is required to be

submitted before the Commissioner. Section 7(3) of the West

Bengal Sales Tax Act, 1994 clearly says that the Bureau may,

on information or of its own motion, or when the State

Government or the Commissioner so directs, carry out

investigation or hold inquiry into any case of alleged or

suspected evasion of tax as well as malpractices connected

therewith and send a report in respect thereof to the

Commissioner. In the instant case, as it appears, the

Bureau of Investigation on its own accord and information

carried out investigation but instead of sending a report to

the Commissioner on the basis of the said investigation,

sent a complaint before the Deputy Superintendent of Police,

Bureau of Investigation "against clear provisions of law"

and the said Deputy Superintendent of Police Forwarded the

same to Hare Street Police Stattion......."

Further again the single judge observed thus

"The person who was making the FIR by forwarding a petition

of complaint based on investigation already done had no

authority to direct the officer-in- charge, that the case

must be again investigated by his own subordinate officer

Sri Amitava Chakravorty and that too under the different

sections of the IPC read with Section 88(i)(6) & (7) of the

West Bengal Sales Tax Act, 1994. Such a procedure is

unknown either in the Criminal Procedure Code or in the West

Bengal Sales Tax Act, 1994."

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The High Court expressed the opinion that under the Sales

Tax Act only a Bureau of Investigation constituted by the

State Government can conduct the investigation or hold

inquiry into any case of alleged or suspected evasion of tax

as well as malpractices connected therewith, and hence no

police officer can investigate into the offences under the

Indian Penal Code or any other Act read with offences

committed under Section 88 of the Sales Tax Act.

It is apparent that learned single judge has not been

appraised of the danger involved in adopting such a

farfetched legal proposition. Assume that a person who

committed any offence under section 88 of the Sales Tax Act

has also committed some other serious offence in connection

with perpetration of the former offence what would be

position of the police if the view adopted by the learned

single judge is to be followed. Is it that police force has

merely to look askance at such persons helplessly on the

mere ground that an offence under Sales Tax Act is also

involved and hence the powers of the police are

unenforceable in that condition?

Learned single judge of the High Court has relied on Section

4 of the Code of Criminal Procedure (for short the `Code').

To find further support to his view that when a special law

is provided for dealing with offences thereunder such

offence can be dealt with only in accordance with the

provisions of such special law.

To understand the scope of the said legal trammel it is

advantageous to refer to Section 4 of the Code. It is

extracted below:

4. Trial of offences under the Indian Penal Code and other

laws. - (1) All offences under the Indian Penal Code (45 of

1860) shall be investigated, inquired into, tried, and

otherwise dealt with according to the provisions hereinafter

contained.

(2) All offences under any other law shall be investigated,

inquired into, tried, and otherwise dealt with according to

the same provisions, but subject to any enactment for the

time being in force regulating the manner or place of

investigating, inquiring into, trying or otherwise dealing

with such offences."

So far as the offences under Indian Penal Code are concerned

sub-section (i) mandates that they can be investigated into

and tried according to the provisions of the Code. When we

go to sub-section (ii) which concerns the offences "under

any other law" it is again the rule that such offences shall

also be investigated and tried according to the provisions

of the Code itself, but with a rider that such investigation

or trial shall be subject to the regulation regarding "the

manner or place of" such investigation or trial prescribed

in any enactment for the time being in force. In Mirza

Iqbal Hussain vs. State of Uttar Pradesh [1982 (3) SCC 516]

a two judge bench of this Court (Chandrachud, CJ and

Chinnappa Reddy, J.) considered the contention that in a

trial of offences under Prevention of Corruption Act the

special court has no power to confiscate any property in

view of Section 4(2) of the Code which excludes powers under

the code while dealing with offences under laws other than

Indian Penal Code. After extracting Section 4(2) of the

Code learned judges observed as follows:

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"It is clear from this provision that in so far as the

offences under laws other than the Indian Penal Code are

concerned, the provisions of the Code of Criminal Procedure

apply in their full force subject to any specific or

contrary provision made by the law under which the offence

is investigated or tried."

The Constitution Bench which decided AR Antulay vs. RS

Nayak [1984 (2) SCC 500] has cautioned that the Code is the

parent statute which provides for investigations, inquiry

into, and trial of cases and unless there is specific

provision in other statute to indicate a different procedure

to be followed, the provisions of the Code cannot be

displaced. Taking cue from the said ratio this court held

recently in Gangula Ashok vs. State of Andhra Pradesh [JT

2001 SC 379] while interpreting Section 4(2) of the Code as

follows:

"A reading of the sub-section makes it clear that subject to

the provisions in other enactments all offences under other

laws shall also be investigated, inquired into, tried and

otherwise dealt with under the provisions of the Code. This

means that if other enactment contains any provision which

is contrary to the provisions of the Code, such other

functions would apply in place of the particular provision

of the Code. If there is no such contrary provision in

other laws, then provisions of the Code would apply to the

matters covered thereby."

We did not come across any provision in the Sales Tax Act

which inhibits the powers of the police as conferred by the

Code. Chapter X of the Act deals with "Offences and

penalties." Section 88 falls within the said chapter.

Sub-section (1)c reads thus:

"Whoever- c fails to make payment of interest payable under

section 31 or section 32;.........shall be punishable with

simple imprisonment which may extend to six months or with

fine not exceeding one thousand rupees or with

both.............."

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

(6) Whoever wilfully attempts in any manner to evade or

defeat any tax imposed under this Act, shall, in addition to

any other penalty provided by any law for the time being in

force, be liable also for the offence of dishonest

misappropriation of property under section 403 of the Indian

Penal Code, and shall be punishable with imprisonment of

either description which shall not be less than three months

but which may extend to two years or with fine not exceeding

ten thousand rupees or with both.

(7) Whoever knowingly produces incorrect accounts, registers

or documents, or knowingly furnishes incorrect information

or suppresses material information shall be punishable with

imprisonment of either description which shall not be less

than three months but which may extend to two years or with

fine not exceeding ten thousand rupees or with both."

The offence envisaged in sub-section (6) is specifically

created as supplemental to any other penalty provided by any

law for the time being in force. This means, offences

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falling under the Indian Penal Code and committed by a

person while committing the offence contemplated in

sub-section (6) cannot get displaced for the sole reason

that the accused has committed the offence falling under

sub-section (6) of Section 88.

Section 7(1) of the Sales Tax Act empowers the State

government to constitute a Bureau of Investigation for

discharging the functions referred to in sub-section (3)

thereof. It empowers the Bureau to carry on the

investigation or hold enquiry into any case or alleged or

suspected case of evasion of tax or malpractice created

thereof and send a report of it to the Commissioner. A

reading of Section 7 makes it clear that creation of Bureau

of Investigation for the purpose of discharging the function

envisaged in sub-section (3) which, of course, includes

investigation also. But there is nothing in Section 7 that

such investigation can be carried on "only" by the Bureau

and not any other investigating agency. It is open to the

Bureau to get the assistance of any other legally

constituted investigating agency for effectively inquiring

into all the ramifications of the offence. As in this case

if offences falling under the Indian Penal Code or any other

enactment are also detected during the course of

investigation conducted by the Bureau there is no inhibition

to pass over the investigation to the regular police.

If the view of the learned single judge gets approval it

would lead to startling consequences. The consequences of

such an interpretation would be that if the person who

commits the offence under Section 88 of the Act also commits

other serious offences falling under Indian Penal Code as

part of the same transaction neiher the regular police nor

any special police force nor even the Central Bureau of

Investigation can be authorised to conduct investigation.

The accused in such cases would then be well ensconced

insulated from the legal consequences of proper and

effective investigation. Criminal justice would be the

serious casualty then.

That apart, how could the FIR be quashed if the

investigating agency should have been different? By lodging

FIR alone no investigation is conducted by the police. It

is the first step towards starting investigation by the

police. If High Court was of the opinion that investigation

has to be conducted by the Bureau then also there was no

need to quash the FIR. Any way we take the view that as

offences under the Indian Penal Code are also involved,

efficacious investigation can be conducted by entrusting it

to the police investigating agency. Inherent powers of the

High Court as recognised in Section 482 of the Code are

reserved to be used "to give effect to any orders under the

Code, or to prevent abuse of the process of any court or

otherwise to secure the ends of justice." It is quite

unfortunate that learned single judge overlooked the reality

that by quashing the FIR in the case the High Court did not

achieve any one of the above factors. On the contrary, the

result of quashing the FIR had rendered the allegation of

offences made against a person to remain consigned in stupor

perennially. Hence, instead of achieving ends of criminal

justice, the impugned order would achieve the reverse of it.

So from any angle, the High Court has committed serious

error in quashing the FIR. We, therefore, allow this appeal

and set aside the impugned judgment.

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