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Raju Verma vs Union Of India And Others on 29 March, 2017

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application (C-482) No. 430 of 2017

Raju Verma …………. Applicant

versus

Union of India others …………. Respondents

Mr. Pulak Raj Mullick, Advocate for the applicant.
Mr. Hari Mohan Bhatia, Advocate for respondent no. 2
Mr. R.C. Arya, Standing Counsel for the State / respondent no. 3.

U.C. Dhyani, J.(Oral)

By means of present application / petition under
Section 482 Cr.P.C., the applicant seeks to quash the entire
proceedings of criminal complaint case no. 1513 of 2015 under
Section 279(1), Union of India (through Deputy Commissioner
of Income Tax) vs Raju Verma
, pending in the court of Chief
Judicial Magistrate, Dehradun under Section 276C(1) r/w
Section 277 of Income Tax Act. A further prayer has also been
sought to quash the notice of summoning dated 17.09.2016,
charge sheet dated 30.11.2016 and dismissal of an application
dated 20.03.2017, filed by the applicant, vide order dated
22.03.2017, by learned Chief Judicial Magistrate, Dehradun and
all proceedings thereafter (copies Annexure 11 and 16 to the
petition).

2) The applicant, therefore, not only seeks quashing
of prosecution launched against him, but also charge sheet
submitted against him. It has been informed to the Court that
the criminal proceedings pending before learned Chief Judicial
Magistrate, Dehradun are at the stage of final arguments.
Learned counsel for the applicant is at pains to place judgments
2

rendered by Hon’ble Apex Court in Commissioner of Income
Tax vs Bhupen Champak Lal Dalal another
, (2001) 248 ITR
830; judgment rendered by Delhi High Court in S. Harnam
Singh Suri vs Central Board of Direct Taxes, ILR
1984 Delhi
45; judgment rendered by Karnataka High Court in P.V. Pai,
B.R. Shetty, Biyar… vs R.L. Raniwma, Deputy…, ILR
1993
KAR 709 and judgment rendered by Rajasthan High Court in
Shree Singhvi Brothers others vs Union of India others,
1991 187 ITR 219 Raj, to argue that Income Tax authorities
were not within their competence to launch present prosecution
against the applicant, which is going on in the court of Chief
Judicial Magistrate, Dehradun. This Court need not discuss
those decisions rendered by Hon’ble Apex Court and various
High Courts, in view of the innocuous prayer, which has been
advanced on behalf of the applicant and which will be taken up
in a short while from now.

3) Learned counsel for the Revenue vehemently
opposed present application under Section 482 Cr.P.C. and
submitted that the petition thus filed is not maintainable.
Learned counsel for the Revenue submitted that similar
application under Section 482 Cr.P.C. was filed on behalf of the
applicant and when the same was heard by learned co-ordinate
Bench of this Court, learned counsel for the applicant sought
permission to withdraw the same, which permission was
granted to him. No liberty was sought for filing second
application under Section 482 Cr.P.C. It is also the submission
of learned counsel for the Revenue that in the relief clause
identical prayer has been sought in present application under
Section 482 Cr.P.C. and, therefore, present petition is not
maintainable.

3

4) Learned counsel for the applicant replied that the
earlier petition was filed against the summoning order of the
applicant whereas present application under Section 482
Cr.P.C. has been filed against framing of charge and rejection
of application of the applicant which was moved for deciding
the preliminary objections in the light of judgments of Hon’ble
Apex Court and various High Courts, quoted above.

5) The scope of discharge has been highlighted by the
Hon’ble Apex Court in a catena of decisions, including the one
in Shoraj Singh Ahlawat others vs State of U.P. another,
AIR 2013 SC 52.

6) First of all, the Court has to see what is the scope
of interference in framing of charge? The Hon’ble Supreme
Court in Shoraj Singh Ahlawat (supra) while relying upon
various decisions rendered in Preeti Gupta another vs.
State of Jharkhand another
(2010) 7 SCC 667, Union of
India vs. Prafulla Kumar Samal another
, (1979) 3 SCC 4;
Sajjan Kumar vs. Central Bureau of Investigation, (2010) 9
SCC 368; State of Orissa vs. Debendra Nath Pandhi, (2005)
1 SCC 568; Onkar Nath Mishra others vs. State (NCT of
Delhi) another
, (2008) 2 SCC 561; Shakson Belthissor vs.
State of Kerala another
, (2009) 14 SCC 466 and Rumi
Dhar (Smt.) vs. State of West Bengal another
, (2009) 6
SCC 364, has observed as follows:

“8. On behalf of the appellant it was argued on the
authority of the decisions of this Court in Preeti Gupta
and Anr. v. State of Jharkhand Anr
. (2010) 7 SCC
667, Union of India v. Prafulla Kumar Samal and Anr.
(1979) 3 SCC 4, Sajjan Kumar v. Central ureau of
Investigation (2010) 9 SCC 368, State of Orissa v.

Debendra Nath Pandhi (2005) 1 SCC 568, Onkar Nath
4

Mishra and Ors. v. State (NCT of Delhi) and Anr.
(2008) 2 SCC 561, Shakson Belthissor v. State of Kerala
and Anr
. (2009) 14 SCC 466, and Rumi Dhar (Smt.) v.
State of West Bengal and Anr
. (2009) 6 SCC 364, that
while considering an application for discharge the
Court can examine the evidence on record and
discharge the accused persons if there is no possibility
of the accused being found guilty on the basis of such
evidence specially in cases where the accused produces
unimpeachable evidence in support of his defence. It
was also contended that while examining whether the
Court should or should not discharge the accused, it
must be remembered, that Section 498-A of the IPC is a
much abused provision and that exaggerated versions
of small incidents are often resented to falsely
implicate, harass and humiliate the husband and his
relatives. Applying the principles set out in the above
decisions the appellants were, according to Ms. Geeta
Luthra, learned counsel appearing for them, entitled to
a discharge not only because there was an inordinate
delay in the filing of the complaint by respondent No.1
but also because the statements made under Section 161
Cr.P.C. by the witnesses who were either planted or
merely chance witnesses were contradictory in nature.
It was argued that two Investigating Officers having
investigated the matter and found the allegations to be
false, there was no reason for the Court to believe the
story set up by the wife who had suffered a decree for
divorce in regard to which she had written to the Army
Authorities a letter dated 2nd October, 2006 stating that
she was not pursuing the matter in any Court.
Appellant No.3-Naveen Ahlawat having got re-
married on 30th October, 2006 the incident referred in
the complaint was a fabrication which aspect the
Courts below had failed to consider thus failing to
5

protect the appellants against harassment and the
ignominy of a criminal trial.

9. On behalf of respondent No.2, it was per contra
argued that her husband had filed a divorce petition
against her in the Family Court, Meerut showing
respondent No.2 to be residing with her parents at 327,
Prabhat Nagar, Meerut, whereas she was actually
residing with the appellants along with her daughter at
No. 9, Tigris Road, Delhi Cantt, Delhi. It was further
argued that appellant No.3 had obtained an ex parte
decree order of divorce by fraudulent means and by
forging signatures of respondent No.2, acknowledging
receipt of the notice which she had never received from
the concerned Court. This was conclusively established
by the fact that the ex parte decree dated 31st May,
2006 had been eventually set aside by the Court in
terms of order dated 28th July, 2007. Allegations
regarding physical torture of respondent No.2 and her
being abandoned on the road on the date of incident in
question as also the allegation about dowry
harassment were factually correct and made out a
clear case for prosecuting the appellants. Appellant
No.3 had, according to the counsel for the respondent,
married one Aditi on 30th October, 2006. It was also
argued that letter referred to by appellant No.3 as also
letter dated 2nd November, 2006 allegedly written by
respondent No.2 were forgeries committed by the
appellants. The trial Court was, in the light of the
available material, justified in refusing to discharge the
accused persons and that the grounds for discharge set
up by the appellants could be examined only after the
case had gone through full-fledged trial. Reliance was
placed upon a decision of this Court in Union of India
v. Prafulla Kumar Samala and Anr
. (1979) 3
SCC 5.

6

10. The case at hand being a warrant case is governed
by Section 239 of the Cr.P.C. for purposes of
determining whether the accused or any one of them
deserved to be discharged. Section 239 is as under:
“239. When accused shall be discharged.

If, upon considering the police report and the
documents sent with it under section 173 and making
such examination, if any, of the accused as the
Magistrate thinks necessary and after giving the
prosecution and the accused an opportunity of being
heard, the Magistrate considers the charge against the
accused to be groundless, he shall discharge the
accused, and record his reasons for so doing.”

11. A plain reading of the above would show that the
Court trying the case can direct discharge only for
reasons to be recorded by it and only if it considers the
charge against the accused to be groundless. Section
240
of the Code provides for framing of a charge if,
upon consideration of the police report and the
documents sent therewith and making such
examination, if any, of the accused as the Magistrate
thinks necessary, the Magistrate is of the opinion that
there is ground for presuming that the accused has
committed an offence triable under Chapter XIX, which
such Magistrate is competent to try and which can be
adequately punished by him. The ambit of Section 239
Cr.P.C. and the approach to be adopted by the Court
while exercising the powers vested in it under the said
provision fell for consideration of this Court in Onkar
Nath Mishra and Ors. v. State (NCT of Delhi)
and Anr
. (2008) 2 SCC 561. That too was a case in
which a complaint under Sections 498-A and 406 read
with Section 34 of the I.P.C. was filed against the
husband and parents in-law of the complainant-wife.
The Magistrate had in that case discharged the accused
7

under Section 239 of the Cr.P.C, holding that the charge
was groundless. The complainant questioned that
order before the Revisional Court which directed the
trial Court to frame charges against the accused
persons. The High Court having affirmed that order,
the matter was brought up to this Court. This Court
partly allowed the appeal qua the parents-in-law while
dismissing the same qua the husband. This Court
explained the legal position and the approach to be
adopted by the Court at the stage of framing of charges
or directing discharge in the following words:
“11. It is trite that at the stage of framing of charge the
court is required to evaluate the material and
documents on record with a view to finding out if the
facts emerging therefrom, taken at their face value,
disclosed the existence of all the ingredients
constituting the alleged offence. At that stage, the court
is not expected to go deep into the probative value of
the material on record. What needs to be considered is
whether there is a ground for presuming that the
offence has been committed and not a ground for
convicting the accused has been made out. At that
stage, even strong suspicion founded on material which
leads the court to form a presumptive opinion as to the
existence of the factual ingredients constituting the
offence alleged would justify the framing of charge
against the accused in respect of the commission of that
offence .”

(emphasis supplied)

12. Support for the above view was drawn by this
Court from earlier decisions rendered in State of
Karnataka v. L. Muniswamy
1977 Cri.LJ 1125,
State of Maharashtra Ors. v. Som Nath
Thapa and Ors
. 1996 Cri.LJ 2448 and State of
M.P. v. Mohanlal Soni
2000 Cri.LJ 3504. In
8

Som Nath’s case (supra) the legal position was
summed up as under:

“if on the basis of materials on record, a court
could come to the conclusion that commission of the
offence is a probable consequence, a case for framing
of charge exists. To put it differently, if the court were
to think that the accused might have committed the
offence it can frame the charge, though for conviction
the conclusion is required to be that the accused has
committed the offence. It is apparent that at the stage
of framing of a charge, probative value of the materials
on record cannot be gone into; the materials brought
on record by the prosecution has to be accepted as true
at that stage. ”

(emphasis supplied)

13. So also in Mohanlal’s case (supra) this Court
referred to several previous decisions and held that the
judicial opinion regarding the approach to be adopted
for framing of charge is that such charges should be
framed if the Court prima facie finds that there is
sufficient ground for proceeding against the accused.
The Court is not required to appreciate evidence as if to
determine whether the material produced was
sufficient to convict the accused. The following passage
from the decision in Mohanlal’s case (supra) is in this
regard apposite:

“8. The crystallized judicial view is that at the stage of
framing charge, the court has to prima facie consider
whether there is sufficient ground for proceeding
against the accused. The court is not required to
appreciate evidence to conclude whether the materials
produced are sufficient or not for convicting the
accused.”

14. In State of Orissa v. Debendra Nath Pandhi
(2005) 1 SCC 568, this Court was considering
9

whether the trial Court can at the time of framing of
charges consider material filed by the accused. The
question was answered in the negative by this Court in
the following words:

“18. We are unable to accept the aforesaid contention.
The reliance on Articles 14 and 21 is misplaced……
Further, at the stage of framing of charge roving and
fishing inquiry is impermissible. If the contention of the
accused is accepted, there would be a mini-trial at the
stage of framing of charge. That would defeat the
object of the Code. It is well-settled that at the stage of
framing of charge the defence of the accused cannot be
put forth. The acceptance of the contention of the
learned counsel for the accused would mean permitting
the accused to adduce his defence at the stage of
framing of charge and for examination thereof at that
stage which is against the criminal jurisprudence. By
way of illustration, it may be noted that the plea of
alibi taken by the accused may have to be examined at
the stage of framing of charge if the contention of the
accused is accepted despite the well settled proposition
that it is for the accused to lead evidence at the trial to
sustain such a plea. The accused would be entitled to
produce materials and documents in proof of such a
plea at the stage of framing of the charge, in case we
accept the contention put forth on behalf of the accused.
That has never been the intention of the law well settled
for over one hundred years now. It is in this light that
the provision about hearing the submissions of the
accused as postulated by Section 227 is to be
understood. It only means hearing the submissions of
the accused on the record of the case as filed by the
prosecution and documents submitted therewith and
nothing more. The expression ‘hearing the submissions
of the accused’ cannot mean opportunity to file
material to be granted to the accused and thereby
10

changing the settled law. At the state of framing of
charge hearing the submissions of the accused has to be
confined to the material produced by the police………

xx xx xx xx

23. As a result of aforesaid discussion, in our view,
clearly the law is that at the time of framing charge or
taking cognizance the accused has no right to produce
any material…”

(emphasis supplied)

15. Even in Smt. Rumi Dhar v. State of West
Bengal Anr
. (2009) 6 SCC 364, reliance
whereupon was placed by counsel for the appellants
the tests to be applied at the stage of discharge of the
accused person under Section 239 of the Cr.P.C., were
found to be no different. Far from readily encouraging
discharge, the Court held that even a strong suspicion
in regard to the commission of the offence would be
sufficient to justify framing of charges. The Court
observed:

“…While considering an application for discharge filed
in terms of Section 239 of the Code, it was for the
learned Judge to go into the details of the allegations
made against each of the accused persons so as to form
an opinion as to whether any case at all has been made
out or not as a strong suspicion in regard thereto shall
subserve the requirements of law…

16. To the same effect is the decision of this Court in
Union of India v. Prafulla Kumar Samal and
Anr. v. (1979) 3 SCC 4, where this Court was
examining a similar question in the context of Section
227
of the Code of Criminal Procedure. The legal
position was summed up as under:

“10. Thus, on a consideration of the authorities
mentioned above, the following principles emerge :

11

(1) That the Judge while considering the question of
framing the charges under Section 227 of the Code
has the undoubted power to sift and weigh the
evidence for the limited purpose of finding out
whether or not a prima facie case against the
accused has been made out:

(2) Where the materials placed before the Court
disclose grave suspicion against the accused which
has not been properly explained the Court will be
fully justified in framing a charge and proceeding
with the trial.

(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it is
difficult to lay down a rule of universal application.
By and large however if two views are equally
possible and the Judge is satisfied that the evidence
produced before him while giving rise to some
suspicion but not grave suspicion against the
accused, he will be fully within his right to discharge
the accused.

(4) That in exercising his jurisdiction under Section
227 of the Code the Judge which under the present
Code is a senior and experienced Judge cannot act
merely as a Post Office or a mouth-piece of the
prosecution, but has to consider the broad
probabilities of the case, the total effect of the
evidence and the documents produced before the
Court, any basic infirmities appearing in the case
and so on. This however does not mean that the
Judge should make a roving enquiry into the pros
and cons of the matter and weigh the evidence as if
he was conducting a trial.”

7) Judging by the same yardstick, the Court does not
find any merit in the grounds which have been taken on behalf
of the applicant in present application under Section 482
Cr.P.C. The Court need not reproduce those grounds which
12

have been taken by the applicant, as the same are part of the
record.

8) Hon’ble Apex Court in Amit Kapoor vs Ramesh
Chander and another
, (2013) 1 SCC (Cri) 986, has laid down
certain principles in respect of exercise of jurisdiction under
Section 482 of Cr.P.C. One of the principle is that the Court
should apply the test as to whether the uncontroverted
allegations as made from the record of the case and the
documents submitted therewith prima facie establish the
offence or not. If the allegations are so patently absurd and
inherently improbable that no prudent person can ever reach
such a conclusion and where the basic ingredients of a criminal
offence are not satisfied then the court may interfere. Where
the factual foundation for an offence has been laid down, the
courts should be reluctant and should not hasten to quash the
proceedings even on the premise that one or two ingredients
have not been stated or do not appear to be satisfied if there is
substantial compliance with the requirements of the offence.
The power is to be exercised ex debito justitiae, i.e., to do real
and substantial justice for administration of which alone, the
courts exists.

9) No interference is called for in the orders under
challenge at this stage, as would also be evident from the law
laid down by Hon’ble Supreme Court in Rajiv Thapar and
others vs. Madan Lal Kapoor
(2013) 3 SCC 330. Para 28 of
the said ruling is reproduced here-in-below for convenience:

“28. The High Court, in exercise of its jurisdiction
under Section 482 of the Cr.P.C., must make a just and
rightful choice. This is not a stage of evaluating the
truthfulness or otherwise of allegations levelled by the
prosecution/complainant against the accused. Likewise, it is
13

not a stage for determining how weighty the defences raised
on behalf of the accused is. Even if the accused is successful
in showing some suspicion or doubt, in the allegations
levelled by the prosecution/complainant, it would be
impermissible to discharge the accused before trial. This is
so, because it would result in giving finality to the
accusations levelled by the prosecution/complainant,
without allowing the prosecution or the complainant to
adduce evidence to substantiate the same. The converse is,
however, not true, because even if trial is proceeded with, the
accused is not subjected to any irreparable consequences.
The accused would still be in a position to succeed, by
establishing his defences by producing evidence in
accordance with law. There is an endless list of judgments
rendered by this Court declaring the legal position, that in a
case where the prosecution/complainant has levelled
allegations bringing out all ingredients of the charge(s)
levelled, and have placed material before the Court, prima
facie evidencing the truthfulness of the allegations levelled,
trial must be held.”

10) The Court was taken through the contents of FIR.
From a bare perusal of FIR, it is apparent that foundation of
criminal offence is preliminary laid against the present
applicant in the instant case. Criminal proceedings pending
against him, therefore, should not be quashed. The jurisdiction
under Section 482 Cr.P.C. should not be exercised to stifle or
scuttle the legitimate prosecution.

11) It is also the settled law that the factual
controversy need not be gone into by this Court in exercise of
its inherent jurisdiction. Inherent jurisdiction under Section 482
Cr.P.C. has to be exercised sparingly, carefully and with
caution and only when such exercise is justified by the tests
specifically laid in the Section itself. The applicant, in the
instant case, is unable to pass those tests.

14

12) At this stage of dictation, learned counsel for the
applicant made an innocuous prayer that learned Chief Judicial
Magistrate, Dehradun should consider the arguments advanced
or to be advanced at the time of final arguments, deal with the
law placed before him by the applicant and should also pass a
reasoned and speaking order.

13) Such innocuous prayer made by learned counsel for
the applicant is worth accepting.

14) Learned Chief Judicial Magistrate, Dehradun is
hereby directed to consider the arguments advanced or to be
advanced at the time of final arguments, deal with the law placed
before him by the applicant and should also pass a reasoned and
speaking order.

15) With the direction as above, application under
Section 482 Cr.P.C. stands disposed of. Liberty is, however,
granted to the applicant to place all the factual pleas before the
trial court for securing his acquittal, at an appropriate stage.

16) Let copy of this judgment be supplied to learned
counsel for the applicant today itself on payment of usual
charges.

(U.C. Dhyani, J.)

Dt. March 29, 2017.

Negi

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