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2012 DIGILAW 1138 (PAT)

Tribhuwan Roy v. State Of Bihar

2012-08-17

SHIVAJI PANDEY

body2012
ORDER Heard learned counsel for the petitioner and the learned counsel for the Vigilance. 2. In this case, the petitioner is challenging the order dated 13th January 2011 passed by the Special Judge, Vigilance-I, Patna in Special Case No. 51 of 2006, arising out of Vigilance P.S. Case No. 60 of 2006 whereby and where under the learned court below has taken cognizance under Sections 13(2) read with 13(1) (E) of the Prevention of Corruption Act, 1988 (hereinafter, in short, referred to as the „Act?). 3. Before coming to the facts of the case, it is relevant to mention here that the petitioner had earlier challenged the order of cognizance dated 2nd December 2006 passed by the In-charge, Special Judge, Patna in Special Case No. 51 of 2006. The order of cognizance was challenged on the ground that Sri Munilal Paswan, In-charge Special Judge, Vigilance, Patna did not have jurisdiction to try the case under the P.C. Act other than one relating to Animal Husbandry. It was further argued that the Special Judge, Vigilance was duly appointed under Section 3 of the Act who was authorized to take cognizance under the Act. The Court had accepted the argument and quashed the order of cognizance and remanded back the case for adjudication, without delay and after the remand, the Vigilance Court vide order dated 13th January 2011 took cognizance under the aforesaid Sections of the Act, mentioned hereinabove. 4. It appears from the record that the petitioner, namely, Tribhuwan Roy has amassed property more than his known source of income during his service period i.e. 6th February 1978 to 30th December 2001. From the record it appears that the petitioner was appointed as clerk in the Department in the year 1978 and subsequently he was promoted to the post of Sub-Inspector of Transport mobile on 5th January 1995. 5. The Income Tax Department raided the house of petitioner on 30th March 2011 on the basis of search warrant. In that raid, some materials and Bank Accounts were seized. Again on 17th April 2011 the Income Tax Department made another raid of the house of petitioner and there the Department had seized documents relating to huge property amassed by the petitioner. His documents show that he has created property either in his name or in the name of his wife or in the name of his children. Again on 17th April 2011 the Income Tax Department made another raid of the house of petitioner and there the Department had seized documents relating to huge property amassed by the petitioner. His documents show that he has created property either in his name or in the name of his wife or in the name of his children. During the search, it was found that the petitioner has double storey residential house at Khajpura in Patna in the name of his wife and has purchased National Saving Certificates, Kisan Vikas Patra and has also purchased about 69.9 Katha of land in the town of Patna or its surrounding and has also collected huge amount of gold ornaments. In pursuance of the raid, the Income Tax Department has initiated a proceeding under the Income Tax Act. On the basis of seizure, the Commissioner, Transport Department, Bihar passed order of suspension dated 27th April 2011 and initiated departmental proceeding against the petitioner. Enquiry report was submitted against the petitioner which was kept in abeyance vide letter No. 1129 dated 26th April 2005 and order of suspension was withdrawn on the ground that the Departmental enquiry is based on the seizure made by the Income Tax Department and the Income Tax Department has initiated a proceeding against the petitioner which was pending before the Income Tax Commissioner in appeal and a further ground was taken that the order of assessment has been challenged by the wife of petitioner before this Court in the writ jurisdiction vide C.W.J.C. No. 5283 of 2003 and the same has been admitted for consideration. It appears from the record that the petitioner was dismissed from service vide Memo No. 1713 dated 6th June 2005 which was challenged in C.W.J.C. No. 8245 of 2005 and in pursuance of order passed in writ petition, Principal Secretary, Transport Department, Government of Bihar withdrew order of dismissal. 6. It appears that the assessing authority has passed the order partly against the petitioner and partly against the Income Tax Department which was ultimately challenged by both the parties before the Income Tax Appellate Tribunal, Patna Bench, Patna vide I.T.(S) 337 PAT 2005. 6. It appears that the assessing authority has passed the order partly against the petitioner and partly against the Income Tax Department which was ultimately challenged by both the parties before the Income Tax Appellate Tribunal, Patna Bench, Patna vide I.T.(S) 337 PAT 2005. From the order of the Income Tax Appellate Tribunal, it appears that the whole property was treated as the property of the wife of petitioner and had directed that the assessment should be made under the name of Smt. Madhuri Sharma, not in the name of this petitioner, as nothing was found against the petitioner. 7. It appears that the present case has been filed under the Act after receipt of inspection report from the Income Tax Commissioner, Patna which was supplied to the Department in pursuance of reply to the letter dated 24th August 2006 written by the Vigilance Department to the Income Tax Commissioner, Patna. From the FIR it appears that the case has been lodged on the basis of materials recovered during the search and seizure made by the Income Tax Department and on that basis, the investigating agency prepared a chart of the property collected by the petitioner during his service tenure and found that the properties collected by the petitioner is highly disproportionate to the salary paid to him from the State Exchequer. It was also found that his wife is not an earning member, rather she is a house wife and the amount that he has received by his salary and the property created is completely disproportionate to the known source of his income. The court below on perusal of Police papers and materials available on the record has taken cognizance under Section 13(2) read with 13(1) ((E) of the Act which is under challenge before this Court. 8. Counsel for the petitioner has impugned the order of cognizance on the following grounds: i) It has been submitted by the counsel for the petitioner that the Income Tax Appellate Tribunal has exonerated the petitioner from being assessed and in place of his assessment, whole property was treated as the property of his wife and in this view of the matter, the Income Tax Tribunal being a quashi judicial authority, once exonerated the petitioner, he cannot be prosecuted in a criminal case. ii) The whole proceeding is based on the materials collected during the Income Tax raid and the documents or records collected by the Income Tax authorities are the basis for prosecution of the present case and when the Income Tax Appellate Tribunal which is a quasi judicial authority did not find any material against the petitioner and exonerated him, in that circumstance it will be abuse of process of the court to take cognizance in the present case. In support of his contention, petitioner has relied on the judgment reported in (1996)9 SCC 1 (P.S.Rajya v. State of Bihar) (Para-17, 18 and 20). iii) There is a delay in lodging the FIR and taking cognizance and, as such, the delay is fatal for taking cognizance and continuation of this case, as the same is violative of Article 21 of the Constitution of India. iv) The counsel for the petitioner has submitted that the order of sanction does not disclose the application of mind. The sanctioning stage is an important stage. The order must show that the authority while granting sanction has applied his mind. v) The last but not the least, counsel for the petitioner has taken the point that the petitioner was in the Transport Department whereas the sanction has been granted by the Law Department the appointing authority has only authority to grant sanction but has been granted by an authority otherwise than the appointing authority, as such, the order of sanction is bad in law and not sustainable. 9. Counsel for the vigilance Department has submitted that the Income Tax authority was only required to make the assessment for the purpose of collection of tax. They were not much interested as to what was the source of income rather they were only interested to recovery of tax which is apparent from the order of the Appellate Tribunal which has been recorded in the order that the Income Tax Department did not take any effort to substantiate as to whether the property was of the petitioner or of his wife and, as such, the order passed by the appellate Tribunal cannot be a ground for non-initiation of this criminal case. He has further stated that it is an admitted fact that the petitioner during his short service period has collected huge amount of properties either in his own name or in the name of his wife or sons and daughters. It has further been submitted that the claim of the petitioner that the property in question belongs to his wife is not sustainable in view of the fact that the wife of the petitioner is a house wife and on show cause he has simply submitted that her source of income being home tution and knitting. Even presuming the fact mentioned in the show cause to be true, she could not have amassed such a huge property and that too, she has never filed any return under the Income Tax Act. In absence of a valid explanation from the petitioner with regard to the source of income of his wife, it will be presumed that the whole property was collected by the petitioner which is disproportionate to the salary earned during the whole service period. The claim of the petitioner that the Income Tax authority being a quashi judicial authority and the finding of the Tribunal is equally applicable in the criminal case is misconceived as the proceeding was or the purpose of income tax where no effort was taken by the Income Tax Department to substantiate the fact that the property which was found in raid was the property of the petitioner but he had purchased it in the name of his wife or his children. 10. The counsel for the Vigilance also submitted that the judgment of P.S. Rajya case (supra) is not applicable to the present case as the Income Tax Department did not make an effort which is apparent from the order of the Tribunal to show that the property that has been found during the raid belongs to the petitioner and in absence of any material fact brought by the Income Tax Authority, it was presumed by the Appellate Tribunal that the property was of wife and, accordingly, the assessment was made. Counsel for the Vigilance has further submitted that when there is no positive finding of Appellate Tribunal of Income Tax only on the presumption it has been treated to be the property of wife and that too, the petitioner could not give a proper reply, while filing the show cause, as such, P.S.Rajya case (supra) is not applicable because in a departmental proceeding, he was exonerated positively from the charges on merit and the Hon?ble Supreme Court has held that on the same set of evidence, the criminal proceeding cannot proceed when the authorities could not prove the charge during the departmental proceeding where the principle of proof was only more preponderance and, as such, the department would completely fail to prove the charges in a criminal case in similar set of facts as in criminal charge has to be proved beyond reasonable doubts. 11. Counsel for the Vigilance has further submitted that there is no delay in initiation of the proceeding, as is apparent from the FIR that the Vigilance Department after recovery of huge property by the Income Tax Department tried to obtain the documents seized but the Income Tax Department, only after 14th August 2006 the materials were made available by the Income Tax Department and after proper action, the present case has been lodged against the petitioner on 5th October 2006. In view of the aforesaid fact it cannot be said that here was delay so much so any fatal delay in instituting the case against the petitioner and, as such, the present proceeding cannot be said to be violative of Article 21 of the Constitution of India. So far non-application of mind, counsel for the vigilance submitted that it is wrong to say that the sanctioning authority has not applied his mind, rather the letter annexed to this petition is mere communication., The deliberations are available on the record which will justify the application of mind. He has further submitted that even if there were some irregularities, it cannot be a ground for quashing the order of cognizance and continuation thereof in view of wordings that have been used in Section 19 of the Act so much so that even if some irregularities are there in granting sanction, that will not vitiate the whole proceeding. 12. He has further submitted that even if there were some irregularities, it cannot be a ground for quashing the order of cognizance and continuation thereof in view of wordings that have been used in Section 19 of the Act so much so that even if some irregularities are there in granting sanction, that will not vitiate the whole proceeding. 12. Counsel for the Vigilance further submitted that with regard to granting sanction by the Law Department being not his appointing Department and not by the appointing authority, Transport Department of the petitioner is in consideration before the Hon?ble Supreme Court which will decide the fate of large number of cases. 13. Having considered the rival contention of the parties, it is desirable to consider the 1st point and the 2nd point together as both are intertwine to each other, accordingly both points are decided together. Basically the point has been raised by the petitioner that during the raid whatever materials were collected by the Income Tax Department is the basis of the present criminal case and when the Income Tax Department exonerated the petitioner, the present criminal case is an abuse of process of court and would vitiate. First of all it is made clear that the proceeding of the income Tax Department is a proceeding basically for assessment for the purpose of collection of tax. In case of evasion of tax the Income Tax authority would make search and seizure and on the basis of search and seizure if it is found that the tax disclosed in the return is not compatible with the property found by the Income Tax Department during the search and seizure would initiate a proceeding for the purpose of income t ax and in the present case, although the proceeding under the Income Tax Act was initiated by the Income Tax Department for evasion of tax as on search and seizure it was found t hat the tax with regard to the property is disproportionate and during the proceeding, the petitioner has taken a plea that the property belongs to his wife. It appears from the order of the Income Tax Appellate Tribunal that the Income Tax Department did not take any effort to show that the property seized is of petitioner, rather in absence of materials or efforts by the Income Tax Department, the appellate authority presumed the property of his wife. It appears from the order of the Income Tax Appellate Tribunal that the Income Tax Department did not take any effort to show that the property seized is of petitioner, rather in absence of materials or efforts by the Income Tax Department, the appellate authority presumed the property of his wife. For that the following paragraphs of the order of the appellate authority are relevant: “We agree with the submission of the learned counsel. From the analysis of the various facts and evidence filed before us, we find that in the course of search, the assessee was never been examined. Even after subsequent search no serious attempt was made by the department to examine the appellant in respect of the source of acquisition of various assets movable or immovable found or detected. It is only the wife of the appellant in whose presence the search was conducted and she was examined u/s 132(4). She owned up the entire assets found or detected and has filed her return owning the entire assets movable or immovable before receiving any notice u/s 158BC and the same return was accepted by the department. “The department has not brought any material on record to prove that the appellant acquired the assets movable or immovable. Learned DR while relying the submissions made in III part has stated that “during the course of search no evidence was collected which could substantiate the claim of the assessee that she had coextensive source of income”. This observation of Learned D.R. is not correct. She has narrated in detail how she has acquired assets movable or immovable found in the course of search. Even if it is taken that no sufficient evidence was available to prove that she was owner of assets movable or immovable found in the course of search, then what evidence has been collected by the department to prove that the appellant was the owner of the assets movable or immovable found in course of search. After going through the affidavit, which remains uncontroverted, it is clear that she had some source of income like house property for which she has rental income and other incomes. After going through the affidavit, which remains uncontroverted, it is clear that she had some source of income like house property for which she has rental income and other incomes. On the other hand not a single piece of evidence is available on record to prove that the appellant has acquired these assets and has failed to explain the source of acquisition in fact the appellant has beer been examined in the course of search or subsequent to search. The appellant has also never been examined in this respect. All along Smt. Madhuri Sharma has been examined/questioned or has been called upon to attend the proceedings either by the AO or the Valuation Officer. She has filed a detailed affidavit which has placed in the paper book at Page 54 to 59”. 14. From the aforesaid facts it is clear that no effort was made by the Department to show that the huge property was amassed by the petitioner. In view of the aforesaid finding of the Income Tax Department that the Department has not made any effective effort to establish that the property was of the petitioner there is no legal bar for the Vigilance Department to proceed with the matter on the basis of materials collected by the Income Tax Department during the search and seizure. At this place it will also be relevant to state that after receipt of the materials from the Income Tax Department, a show cause notice was served upon the petitioner which is apparent from the FIR and he could not explain as to his source of income and the source of income of his wife disproportionate to the recovery made during the search and seizure. In the show cause, the plea has been taken by the petitioner that the wife of the petitioner has earned this property by private tution, knitting and house rent but in support of the aforesaid claim, he could not produce any material to substantiate the earning of his wife, so much so that, the wife of the petitioner has not filed any return to the Income Tax Department before the raid conducted by the Income Tax Department. In absence of plausible explanation, it has been treated by prosecution that the whole property found during search and seizure belongs to the petitioner and, as such, the case was instituted against him. In absence of plausible explanation, it has been treated by prosecution that the whole property found during search and seizure belongs to the petitioner and, as such, the case was instituted against him. This presumption is only tentative subject to decision rendered in the trial. 15. Section 13(C) of the Act makes it very clear that if he or any person on his behalf is in possession of the property, and the public servant cannot satisfactorily account for pecuniary source or the property disproportionate to known source of income will be liable to be prosecuted. In the present case at the stage of taking cognizance, the court was required to see the prima facie case and the court on perusal of material available on the record took cognizance of the offence and proceeded accordingly. 16. In view of aforesaid discussion, this point raised by the petitioner is not sustainable in law. 17. So far the point that has been taken with regard to delay, it is apparent from the contents of the FIR which is part of the petition discloses that they could lay their hands on the documents collected by the Income Tax department after 24th August 2006 and the case has been filed in October 2006 and, as such, there is no delay so much so fatal for initiation and taking cognizance in the matter. 18. With regard to the other point with regard to sanction by the authority concerned, the order granting sanction dated 3rd July 2008 (Annexure-9) shows that this letter is only a mere communication discloses that the authority concerned has granted sanction. The provisions of Section 19 of the Act has been considered by this Court in a judgment reported in 2011(3) PLJR 566 (Dinesh Prasad vs. State of Bihar) where this Court has considered the point concerning some irregularities in granting the sanction and the Court has held that even if some irregularities are there, the proceeding under Section 13 of the Act can proceed. Para-22 of the said judgment is as follows: “Para 22: As for the cases cited by the petitioners, on going through the judgment reported in (2005)8 CC 130 (State of Goa Vs. Babu Thomas), I find that in paragraph 11 a reference has been made to an earlier decision reported in (2004)7 SC 763 (State by Police Inspector Vs. Para-22 of the said judgment is as follows: “Para 22: As for the cases cited by the petitioners, on going through the judgment reported in (2005)8 CC 130 (State of Goa Vs. Babu Thomas), I find that in paragraph 11 a reference has been made to an earlier decision reported in (2004)7 SC 763 (State by Police Inspector Vs. T. Venkatesh Murthy) Supra wherein, it was held that a mere omission or irregularity in the matter according sanction would not effect the validity of the proceeding unless the court record and is satisfied that such error or omission has resulted in failure of justice and that the said logic will apply to the appellate or Revisional court also, but disagree with this proposition since it was of the considered opinion that in the facts of the case, sanction order was not merely irregular but it went to the root of the prosecution case. It does not decide any proposition of law” 19. In view of the aforesaid view of this Court, the criminal proceeding will not vitiate, in view of the fact that nothing appears from the record to show that some irregularities and error has caused failure of justice. In this view of the matter, this point is also not sustainable in law. 20. With regard to the point that has been raised by the petitioner that he was an employee of the Transport Department but sanction has been granted by the Law Department counsel for the petitioner has placed reliance on a judgment of the Hon?ble Single Judge of this Court dated 3rd March 2011 passed in Cr. Misc. No. 44151 of 2008 (Shankar Prasad v. State of Bihar) in which it has been held that the sanction granted by the Law Department, is bad as the employee was working in another department and the Law Department will not be treated as appointing authority and the order of cognizance has been quashed. As has been informed at the Bar that the issue that has been decided by a single Judge of this Court as aforesaid is the subject matter of consideration before the Hon?ble Supreme Court and, as such, this Court will not like to give answer on this point. As has been informed at the Bar that the issue that has been decided by a single Judge of this Court as aforesaid is the subject matter of consideration before the Hon?ble Supreme Court and, as such, this Court will not like to give answer on this point. However, if the point is decided by the Hon?ble Supreme Court in favour of petitioner, he would be at liberty to raise this additional point before the trial court and the trial court would be obliged to consider the same and pass order accordingly. 21. In view of the aforesaid discussions this Court does not find any merit in the present case. This petition is accordingly dismissed with aforesaid liberty.