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2016 DIGILAW 1053 (JHR)

Bhandari Dinesh Kumar v. State of Jharkhand

2016-07-15

RONGON MUKHOPADHYAY

body2016
ORDER : 1. Heard Mr. P.D. Agrawal, learned counsel appearing for the petitioner and Mr. Yogesh Modi, learned J. C. to A.A.G. 2. In this writ application, the petitioner has prayed for quashing of the entire criminal proceedings in connection with Mango P. S. Case No. 45 of 1992 instituted for the offences punishable under Sections 420, 468, 471 of the Indian Penal Code. A further prayer has been made for quashing the orders dated 02.09.2008 passed by the learned Judicial Magistrate, 1st Class, Jamshedpur by which the application preferred by the petitioner for discharge has been rejected as well the order dated 26.07.2011 passed by the learned Sessions Judge, Jamshedpur in Criminal Revision No. 233 of 2008 affirming the order passed by the learned Magistrate on 02.09.2008. 3. It has been submitted by the learned counsel for the petitioner that earlier also the petitioner has preferred criminal writ for quashing the entire criminal proceedings but the same was tied with several writ applications in which the issue concerned was whether a notification is required to be issued by the Commissioner of Commercial Taxes and whether the same can be said to be contravention of the provisions of sub-section (2a) of Section 31 of the Bihar Finance Act for not carrying the forms 28A and 28B. It has been submitted that although an order was passed by the Division Bench of this Court quashing the proceedings as well as the orders in terms of sub-section (2a) of sub-section 3 of Section 31 of the Act but no order was passed in the Criminal Writ preferred by the petitioner. It has been submitted that the order passed in Cr.W.J.C. No. 3018 of 1993 (R) and its analogous cases has categorically held that there is no necessity of having in possession form 28B while carrying the goods and this fact has not been appreciated at all by the learned courts below while considering the discharge application preferred by the petitioner. It has been submitted that the order passed in Cr.W.J.C. No. 3018 of 1993 (R) and its analogous cases has categorically held that there is no necessity of having in possession form 28B while carrying the goods and this fact has not been appreciated at all by the learned courts below while considering the discharge application preferred by the petitioner. Further submission has been made that initially a First Information Report was directed to be lodged under Section 49 (f) of the Bihar Finance Act but in view of the embargo enunciated in sub-section 5 of Section 49 of the Bihar Finance Act in which the previous sanction of the Commissioner was required, First Information Report was instituted and the cognizance was subsequently taken under Sections 420, 468, 471 of the Indian Penal Code. It has further been submitted by the learned counsel for the petitioner that it is immaterial whether form 28B as was contended by the investigating agency is forged and fabricated in view of the fact that there was no necessity for having possession of form 28B in terms of the judgment of the Hon'ble Division Bench. Learned counsel, there fore, submits that since such consideration has not been made by the learned courts below, the entire criminal proceedings as against the petitioner deserves to be quashed and set aside. Learned counsel for the petitioner further submits that with respect to the fact that even if form B was found to be forged and fabricated cannot be said to come within the ambit of definition of cheating as referred to the judgment passed in the case of Shailendra Kumar Sinha vs. The State of Bihar reported in 1991 (1) PLJR 423. 4. At this, Mr. Yogesh Modi, learned J. C. to A.A.G., has submitted that although it is fact that the Hon'ble Division Bench has struck down the proceedings initiated under the Bihar Finance Act with respect to the other writ petitioners and that there was no necessity of carrying form 28B under Bihar Finance Act in absence of a fresh declaration or adoption of the earlier declaration by the Commissioner by a notification but at the same time it cannot be ignored that admittedly form 28B found in possession was having several discrepancies and, therefore, a case under Sections 420, 468, 471 of the Indian Penal Code is clearly made out. It has been submitted that the intent and purpose of carrying a forged form 28B would be evident from the fact that at the relevant point of time when the vehicle was seized there was requirement of carrying 28B till the said requirement was set aside by the Hon'ble Division Bench of this Court. In such circumstances, therefore, learned counsel submits that the present application being devoid of any merit deserves to be dismissed. 5. The petitioner in the present application has made two fold prayers. The first prayer is with respect to quashing of the entire criminal proceedings and the second is with respect to rejection of the discharge application preferred by the petitioner. Pursuant to the institution of a First Information Report against the petitioner he preferred a criminal writ application being Cr.W.J.C. No. 150 of 1993 (R) which was tagged along with several other writ applications in which the issue was whether it was necessary to carry form 28A and form 28B in absence of adoption by the Commissioner of the said notification or by prescribing a fresh notification for giving effect to the provisions of sub-section (2a) of Section 31 of the Bihar Finance Act after the old Act with respect to subsection (2a) was substituted. The issue which was the subject matter of C.W.J.C. No. 3018 of 1993 (R) and its analogues cases was decided by this Court on 02.02.1996 in which it was held as follows:- “18. It is to be noted that after sub-section (2a) of Section 31 of the Act was substituted by the Act 7 of 1984, the Commissioner of Taxes by the Notification No. S.O. 1432 dated 28.12.1985, adopted the forms 28A and 28B which were to be carried by a person, transporting goods through the State of Bihar. Besides provisions of new sub-section (2a) of the notification is at variance with the provisions of old sub-section (2a) of Section 31 of the Act inasmuch as the sub-section (2a) after substitution by Ordinance 20 of 1993 mandates keeping the declaration form in transit or in transit storage which was not there in the old provision of sub-section (2a) of Section 31 of the Act before substitution of the Ordinance 20 of 1993. 19. On perusal of sub-section (2a) of Section 31 as well as Section 27 of the Bihar & Orissa General Clauses Act ( Act no. 19. On perusal of sub-section (2a) of Section 31 as well as Section 27 of the Bihar & Orissa General Clauses Act ( Act no. 1 of 1917), I am unable to accept the submission of the learned Advocate General that as per provisions of Section 27 of the Act, forms 28A and 28B, prescribed under the old provisions of sub-section (2a) continue to hold the field in the absence of issuance of any notification by the Commissioner of Taxes, after the old provisions of the Act was substituted by the Ordinance 20 of 1993. I find force in the submission of the learned counsel for the petitioners that substituted sub-section (2a) of Section 31 of the Act having specifically provided that a person transporting goods shall carry form of declaration in such form as may be prescribed by the Commissioner by a notification, while transporting the goods through the State of Bihar, for giving effect to the provision of sub-section (2a) of Section 31 of the Act after the old provisions of sub-section (2A) was substituted, it was essential to prescribe or adopt the form of declaration by the Commissioner by a notification. As such, in absence of any notification issued by the Commissioner prescribing or adopting form of declaration there is no scope for the prescribed authority to exercise power under sub-sections (2a) and (3) of Section 31 of the Act on the ground of contravention of the provisions of sub-section (2a) of Section 31 of the Act inasmuch as in the absence of any notification prescribing or adopting in form of declaration it cannot be said that sub-section (2a) of Section 31 of the Act has been contravened for not carrying the declaration form as contemplated under subsection (2a) of Section 31 of the Act. That being so, the impugned proceedings initiated against the petitioners on the allegation of contravention of the provisions of sub-section (2a) of Section 31 of the Act for either not carrying the forms 28A and 28B or carrying the said forms with incomplete or with defective entries which were adopted by the notification No. S.O. 1432 dated 28.12.1985, prior to substitution of sub-section (2a) of Section 31 of the Act, is illegal and without jurisdiction and on this ground alone the impugned proceedings initiated against the petitioners for alleged violation of sub-section (2a) of Section 31 of the Act and the impugned orders passed seizing the goods etc, of the petitioners and the orders imposing penalty in the exercise of power under sub-section (2b) and sub-section (3) of Section 31 of the Act are illegal and without jurisdiction and cannot be sustained.” 6. The effect of the judgment under reference would thus mean that at the relevant point of time there was no necessity for carrying either form 28A or 28B as there was no notification issued by the Commissioner prescribing or adopting form of declaration as was the requirement under the Bihar Finance Act. The First Information Report reveals that at the time of apprehending the vehicle the papers were looked into and with respect to form 28B several discrepancies were detected which ultimately led to confusion that the said form 28B was in fact a forged document. The First Information Report further reveals that action was directed to be taken under Section 49(f) of the Bihar Finance Act as well as under the provisions of the Indian Penal Code. Subsequently, however, cognizance was taken only for the offences punishable under Sections 420, 468, 471 of the Indian Penal Code and no cognizance was taken under Section 49 (f) of the Bihar Finance Act. 7. As has been rightly pointed out by the learned counsel for the petitioner the provision of Section 49 (5) of the Bihar Finance Act perhaps caused a hindrance as no prior sanction of the competent authority i.e. the Commissioner of Commercial Taxes was taken prior to institution of the First Information Report. 7. As has been rightly pointed out by the learned counsel for the petitioner the provision of Section 49 (5) of the Bihar Finance Act perhaps caused a hindrance as no prior sanction of the competent authority i.e. the Commissioner of Commercial Taxes was taken prior to institution of the First Information Report. Even otherwise if indeed some defects or discrepancies were found in the purported form B which was seized by the informant the same cannot by itself in view of the order passed by the Hon'ble Division Bench in Cr.W.J.C. No. 3018 of 1993 (R) and its analogues cases said to have caused any wrongful gain to the petitioner or any corresponding wrongful loss to the department. 8. Even assuming that there was no form B in possession at the time of carrying the goods the same could not lead to any violation of the provisions of Bihar Finance Act in view of the judgment of the Hon'ble Division Bench as referred to above. As has been repeatedly stated that there was no necessity for the petitioner to have in his possession form 28B of the Bihar Finance Act and even if it is assumed that some defects were indeed there in the said form the same by itself cannot constitute a criminal offence as no wrongful advantage has been taken by the petitioner. 9. These facts were never considered by the learned courts below while considering the discharge application of the petitioner. 10. In view of the fundamental defect which has been noted above and in the initiation of the First Information Report in the backdrop of the judgment passed by the Hon'ble Division Bench in Cr.W.J.C. No. 3018 of 1993(R), this application is allowed and the entire criminal proceedings as against the petitioner is quashed.