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1997 DIGILAW 1341 (ALL)

RAJENDRA PRASAD TYAGI v. STATE OF U P

1997-11-07

J.C.MISHRA

body1997
J. C. MISHRA, J. This application has been filed by accused Rajendra Prasad Tyagi, an I. A. S. Officer, for quashing the FIR relating to Crime No. 497 of 1997 under Section 13 (1) (E) read with Section 13 (2) of Prevention of Corruption Act, 1988 (hereinafter called the Act for convenience), P. S. Civil Lines, Meerut. 2. The prosecution case is that an in come tax raid was conducted by the In come Tax Officers on 21-1- 97 and found the assets disproportionate to the income of the applicant. At that time he was posted as Special Secretary, Minority Welfare Cell at Lucknow. The Income Tax Department started making enquiry re garding undisclosed money, jewellery, bullion etc. found at the house. Simultane ously, the U. P. Government ordered an investigation to be conducted by U. P. Vigilance Establishment at Dehradun Sector Dehradun. The investigation dis closed that while serving the State on vari ous responsible posts the applicant had collected money amounting to Rs. 14,00,000/- besides cash, bullion, orna ments etc. found during the raid by In come Tax Officers, it was found that the accused had several houses in the name of his wife, sons and other persons besides cars, computer, mobile phones, washing machine, fridge, portable stereo, compact system (sic) F. T. 377, air conditioners, Maruti Van etc. 3. The Inspector U. P. Vigilance es tablishment lodged a report at P. S. Civil Lines, District Meerut on 25th October, 1997 which was registered under Section 13 (1) (E) read with Section 13 (2) of the Act. 4. The applicant feeling aggrieved by the registration of the case and apprehend ing his arrest has filed this application for quashing the FIR on the ground that or naments, cash, bullion etc. found by the Income Tax Officers during the raid did not belong to him but to the Securi Tech India Pvt. Ltd. and other persons. He filed copy of the applications moved by the aforesaid concerns and other persons before the Assistant Director of Income Tax, Ghaziabad, Deputy Commissioner Income Tax, Special Range, Ghaziabad, Commis sioner, Income tax, Meerut and Chairman Central Board of Direct Taxes, Delhi (annexures 2 to 5 to the application) which indicates that the aforesaid concern had claimed the cash and other valuables etc. 5. 5. It has also been contended that the sons, wife and other relations of the appli cant were well placed and the house, car and other articles were purchased from their own legal income. 6. I have heard Sri Rajendra Kumar, learned counsel for the applicant and learned Additional Govenment Advocate. 7. The learned counsel for the appli cant contended that the applicant is well placed and belongs to a reputed family and this report has been lodged only to hu miliate him. It has. also been contended that the applicant has no concern with the cash, bullion, ornaments and other assets, which were found by the Income Tax Authorities from the house, which belongs to him. 8. The learned Additional Govern ment Advocate contended that under its inherent powers this Court cannot quash the prosecution as on the allegations con tained in the FIR prima facie offence pun ishable under Section 13 (2) read with Section 13 (I) (E) of the Act has been made out. He also contended that this Court has no jurisdiction to enter into the controversy whether the defence version of the applicant can be considered. He re ferred to a decision of the Supreme Court in Radhey Shyam Khemka and another v. State of Bihar, 1993 JIC 603 (SC), wherein the Magistrate had taken cogni zance of offence under Section 409, IPC against Managing Director and Directors of a public limited company on the basis of charge-sheet submitted by CBI and other material, which prima facie disclosed dishonest misappropriation of share and de benture moneys collected from public. The Supreme Court held that if offence prima facie falls under the Penal Code, launch ing of prosecution cannot be thwarted by High Court under Section 482, Cr. P. C. merely because penal action open under any other statute. 9. He also referred to a decision of the Supreme Court in State of Haryana-and others v. Ch. Bhajan Lal and others, 1990 (2) JIC 927 (SC), wherein it was held that where the complaint alleges commis sion of offence under Section 5 (1) of Pre vention of Corruption Act and the matter relating to serious disputed facts yet to be investigated, the investigation cannot be quashed on the basis of denial of statement of party against whom commission of of fence is alleged. It was further observed that the investigation of the cognizable offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliterating the track of inves tigation when the investigating agencies are well within their legal bounds as aforementioned. 10. It was further observed that the power under Section 482, Cr. P. C. should be exercised sparingly and that too in the rarest of rare cases. The Supreme Court also enumerated the guidelines empower ing the High Court to interfere in the pro ceedings relating to cognizable offences to prevent the abuse of process of any court or otherwise to secure the ends of justice. 11. Similar view was taken in Union of India and others v. B. R. Bajaj and oth ers, 1994 JIC 238 (SC ). 12. In view of the aforesaid decisions this Court cannot perform the job of the investigation to hold that the applicant has valid defence. It is for the investigating agency to collect the material and draw its own conclusions. 13. Another ground on which the quashing or the prosecution has been claimed is contemplated proceedings un der Income Tax Act. The learned counsel referred to the provisions of Sections 276 (e) and 271 of the Act and contended that the Income Tax Authorities can impose penalty if they find that the applicant had evaded income tax or committed default in payment of income tax and in case they find that the applicant had wilfully at tempted in any manner to evade income tax, penalty or interest chargeable he may be punished rigorous imprisonment upto a period of 6 months. The learned counsel contended that if both the proceedings are simultaneously taken the applicant may be punished for the same offence more than once. He also contended that in view of the provisions of Article 20 of the Constitution of India the double jeopardy has been prohibited. 14. In the case before us the Income Tax Authorities have not launched any prosecution and, therefore, there is no rea son to presume at this stage that the ac cused would be being tried twice for the same offence. 14. In the case before us the Income Tax Authorities have not launched any prosecution and, therefore, there is no rea son to presume at this stage that the ac cused would be being tried twice for the same offence. The applicant may take this plea if any prosecution is started by the Income Tax Authorities in accordance with the provisions of the Income Tax Act. Furthermore, the offences punishable un der Section 276 (e) of Income Tax Act and under Section 13 (2) read with Section 3 (1) (E) of the Prevention of Corruption Act are distinct offences. Under the Income Tax Act an assessee is punished for evad ing tax, penalty or interest whereas under the Prevention of Corruption Act the ac cused is punished for being in possession of assets which a public servant cannot satisfactorily account, of pecuniary re sources or property disproportionate to his known sources of income. Therefore, it cannot be said that the applicant will or is likely to be punished twice for the same offence. In my opinion Article 20 of the Constitution of India does not prohibit trial and conviction under the aforesaid two distinct offences. In similar circum stances the Supreme Court refused to quash the prosecution in Radhey Shyam Khemkas case (supra), on the ground that it was open to the applicants for to take recourse to the provisions of Companies Act. 15. The learned counsel for the appli cant referred to order dated 4th October, 1997 passed by a Bench of this Court. He contended that under the similar circum stances this Court has stayed the arrest of the accused. He also contended that under similar circumstances some orders were passed. 16. In my opinion, the interim orders cannot be treated as ratio decidendi. It is well known that the interim orders are passed on the circumstances of the particu lar case and cannot be applied to the facts of other case. In view of the aforesaid facts and cir cumstances I find that the application has no force and it is rejected at the admission stage. Application rejected. .