| SooperKanoon Citation | sooperkanoon.com/133819 |
| Subject | ;Criminal |
| Court | Guwahati High Court |
| Decided On | Nov-17-2008 |
| Judge | U.B. Saha, J. |
| Appellant | Kashinath Bhattacharjee |
| Respondent | State of Tripura and anr. |
U.B. Saha, J.
1. As agreed by the learned Counsel of both sides, this revision petition is taken up for final disposal at the admission stage itself.
2. By filing the instant application under Section 397 read with Section 401 of the Code of Criminal Procedure (herein after referred to as 'the Code') as well as under Article 227 of the Constitution of India, the petitioner has challenged the order of the learned Judicial Magistrate 1st Class, Court No. 5, Agartala, West Tripura dated 18.6.2008 passed in N.I. Case No. 113 of 2007 whereby and whereunder the learned Judicial Magistrate 1st Class rejected the prayer of the present petitioner who is the accused in the aforesaid case No. N 1. 113/07, for production of income tax return of the complainant, respondent No. 2 herein, for the assessment year 2004-05 to 2006- 07 and fixed the matter for hearing on the question of maintainability of the case/proceeding on 21.6.2008.
3. Heard Mr. S.M. Chakraborty, learned senior counsel, assisted by Mr. S. Dutta Choudhury, learned Counsel for the petitioner and Mr. D. Sarkar, learned Public Prosecutor for the respondent No. 1, State of Tripura as well as Mr. P.K. Biswas, learned Counsel appearing for the respondent No. 2, complainant.
4. In the instant case the questions arise for decision by this Court are whether the accused in a summons case has the right for asking the trial court to issue direction to the complainant, respondent No. 2 herein for production of his income tax return to the court at the time of examination of the witnesses of the complainant before framing of charge and whether the impugned order is an interlocutory order and if so whether revision against the said order is permissible.
5. The facts needed to be discussed for disposal of the present revision petition are as follows:
The respondent No. 2 in the instant application made a complaint before the learned Chief Judicial Magistrate, West Tripura, Agartala by way of filing an application to take cognizance of offence under Section 138 of the N.I. Act and Section 420 of the Indian Penal Code {for short 'IPC') against the present petitioner, the accused therein, as the present petitioner issued a cheque in favour of the respondent No. 2 for an amount of Rs. 19,35,000/- to meet up the dues against the account of the present petitioner vide Cheque No. SB 566532 dated 15.5.2007 on Tripura Gramin Bank, Agartala Branch, which was subsequently bounced on production by the respondent No. 2 before the Bank authority due to nonavailability of the aforesaid amount in the account of the present petitioner. On receipt of the complaint petition filed by the respondent No. 2, the learned Chief Judicial Magistrate registered the same as Case No. N.I. 113 of 2007 and after taking congnizance transferred the same to the court of learned Judicial Magistrate 1st Class, Agartala, West Tripura for trial. After receiving the aforesaid complaint case on transfer, the learned Judicial Magistrate 1st Class fixed the matter for examination of witnesses before framing of charge and on the date of examination of witnesses an application was filed by the present petitioner praying for a direction to the respondent No. 2 herein to produce in income tax return for the assessment year 2004-05 to 2006-07. The said prayer of the present petitioner was rejected by the learned Judicial Magistrate 1st Class vide order dated 18.6.2008 and being aggrieved by the aforesaid order dated 18.6.2008, the petitioner preferred the present revision petition for quashing the said order.
6. Mr. Chakraborty, learned senior counsel for the petitioner would contend that the petitioner filed the aforesaid petition which was rejected by the learned trial court only for the purpose of confronting the witnesses of the complainant, respondent No. 2 herein at the time of examination of witnesses of the complainant before framing of charge so that the accused, petitioner herein, can get the benefit even before trial is initiated. He submits that an accused has the right to get an opportunity to put question with respect to framing of charge by the learned trial court on the basis of evidence adduced by of the witnesses of the complainant. According to him, if the accused can establish even before framing of charge that the evidences of witnesses fail to constitute any offence against him then he can do so and for which the provision of Section 91 of the Code is prescribed by the legislature. He finally contended that the learned trial court failed to consider the provisions of Section 91 of the Code in true sense and the impugned order passed by the learned trial court is not a speaking and/or reasoned order. The entire exercise done by the learned trial court for rejection of application of the petitioner herein is without any proper inquiry. On query of this Court Mr. Chakraborty submits that the impugned order has two parts, one part relates to production of income tax return of the complainant and another relates to maintainability of the proceeding and since the learned trial court decided the issue relating to production of income tax return of the complainant, respondent No. 2 herein, rejecting the prayer of the present petitioner, this part of the order is a final one and so far the question of maintainability of the case/proceeding is concerned, the learned trial court fixed the matter for hearing. Therefore, that part of the order is interlocutory in nature.
7. Mr. Biswas, learned Counsel appearing for the respondent No. 2 complainant forcefully submits that the impugned order being an interlocutory order, the instant revision petition is not maintainable at all. Supporting the impugned order of the learned trial court, Mr. Biswas would contend that the said order is a valid and reasoned one as the learned trial court specifically stated in its order that the documents relied on by the prosecution, i.e. the complainant have already been supplied to the present petitioner and therefore, question of furnishing and/or calling any other document like income tax return of the complainant-respondent does not call for. He also contends that as per the provisions of Sections 138 and 280 of the Income Tax Act, 1961 (for short 'the Act of 1961') the learned trial court is prohibited from calling any document from the Income Tax Authority unless those documents are called for any public purpose and if the accused requires any such document like income tax return of the complainant for confronting the witnesses of the complainant then he/she can ask for those documents only to the income tax authority, not to the court and court cannot call for such documents for allowing the accused to confront the witnesses of the complainant. He contends that if the prosecution fails to prove its case for non-production of any document or evidence then the prosecution will face the consequence, but the court cannot compel the prosecution to produce any document in a criminal case, which the prosecution has not relied on for the purpose of proving its case. In support of his aforesaid submissions, Mr. Biswas relied on the decision of the Allahabad High Court in the case of Munshi Singh v. The State reported in AIR 1953 Allahabad 197 : 1953 CriLJ 546 particularly paragraph 3 and the case of Zahira Habibullah Sheikh (5) and Anr. v. State of Gujarat and Ors. decided by the Apex Court and reported in : 2006CriLJ1694 particularly paragraphs 28 and 29.
8. Mr. Sarkar, learned Public Prosecutor submits that the dispute in this case is mainly between the petitioner and the respondent No. 2. If the court considers that the impugned order is not in accordance with law then the said order may be quashed and the matter may be remitted back to the learned trial court for fresh adjudication in accordance with law.
9. This Court has given anxious consideration to the submission of the learned Counsel for the parties and the materials available before it.
10. Before appreciation of the submission of the learned Counsel for the parties, it would be proper for this Court to discuss the objection and scope of Section 91 of the Code for which it is also necessary to reproduce the said Section.
91. Summons to produce document or other thing.-(l) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed-
(a) to affect, Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers, Books Evidence Act, 1891 (13 of 1891), or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.
11. The powers conferred under Section 91 of the Code are enabling in nature and the provision being enabling in nature the court and the investigating authority are also armed with certain powers to enforce and ensure production of any documents or other things as 'necessary or desirable' for the purpose of any investigation, inquiry, trial or other proceeding under the Code by issuing a summons or a written order to those persons in whose possession or power such documents are lying. The language of Section 91 would undoubtedly indicate the unlimited power of the court to summons to produce document or other thing, but some restrictions are also imposed so that such power should not be used for any other purpose except for ends of justice. Section 91 also not prohibits the accused persons to come with an application praying for production of certain documents as required by him to prove his innocence if those documents are lying with any other person except him. Now, the question is in what stage such an application can be filed by the accused person and what duty casts upon the learned trial court for disposal of such application filed under Section 91 of the Code. According to this Court, unless the complainant examines his witnesses under Section 200 of the Code for making out a prima facie case and charge has not been framed then such an application can be filed. But the learned trial court before allowing or rejecting the application should inquire about the matter whether the documents called for by the accused person are actually necessary or not for ends of justice at the time of trial. It would not be proper for the learned trial court to reject such an application without proper inquiry about the necessity of such documents.
12. Now, let this Court examine the provisions of Sections 138 and 280 of the Act of 1961, whether those provisions really prohibit a court of law from calling any document from the income tax authority like the copy of income tax return of the complainant-respondent as submitted by Mr. Biswas, learned Counsel for the respondent No. 2 for which it is necessary to reproduce the aforesaid provisions of the Act of 1961, which run as follows:
138. [(1)(a) The Board of any other income-tax authority specified by it by a general or special order in this behalf may furnish or cause to be furnished to-
(i) any officer, authority or body performing any functions under any law relating to the imposition of any tax, duty or cess, or to dealing in foreign exchange as defined in Section 2(d) of the Foreign Exchange Regulation Act, 1947 (7 of 1947); or
(ii) such officer, authority or body performing functions under any other law as the Central Government may, if in its opinion it is necessary so to do in the public interest, specify by notification in the Official Gazette in this behalf, any such information [received or obtained by any income-tax authority in the performance of his functions under this Act), as may, in the opinion of the Board or other income-tax authority, be necessary for the purpose of enabling the officer, authority or body to perform is or its functions under that law.
(b) Where a person makes an application to the [Chief Commissioner or Commissioner) in the prescribed form for any information relating to any assessee [received or obtained by any income-tax authority in the performance of his functions under this Act), the [Chief Commissioner or Commissioner) may, if he is satisfied that it is in the public interest so to do, furnish or cause to be furnished the information asked for [***) and his decision in this behalf shall be final and shall not be called in question in any court of law.)
(2) Notwithstanding anything contained in Sub-section (1) or any other law for the time being in force, the Central Government may, having regard to the practices and usages customary or any other relevant factors, by order notified in the Official Gazette, direct that no information or document shall be furnished or produced by a public servant in respect of such matters relating to such class of assessees or except to such authority as may be specified in the order.]
280.(1) If a public servant [furnishes any information or produces any document in contravention of the provisions of Sub-section (2) of Section 138,] he shall be punishable with imprisonment which may extend to six months, and shall also be liable to fine.
(2) No prosecution shall be instituted under this section except with the previous sanction of the Central Government.
13. There is no doubt that the court cannot ask the income tax authority for producing any documents relating to income tax proceeding and/or like unless the same is required for the public interest and/or public purpose. On examination of the aforesaid provisions of the Act of 1961, it appears that a person has the right to make an application to the prescribed authority for any information relating to any assessee and the said authority, if satisfied, can furnish the information asked for and the decision of the prescribed authority is final, which cannot be called into question in any court of law. But the aforesaid provisions nowhere prohibit the court to call for the documents relating to any assessee, if those are required for the public interest and/or public purpose. Now, the question is what should be considered as public interest and/or public purpose. According to this court, to provide justice to a citizen by the court if those documents are really necessary then the said purpose should be considered as public purpose/public interest. Therefore, the court has the power to call for the documents from the income tax authority for the ends of justice, if the court so desires, but not to provide benefit to any of the parties contrary to the provisions of the Act of 1961.
14. This Court has gone through various judgments of the Apex Court as well as various High Courts including this Court on Section 91 of the Code, but according to this Court except the decision of the Madhya Pradesh High Court in the case of S.K. Singhal v. State of M.P. through P.S. Industrial reported in : 1997(2)MPLJ220 , facts of no other case is similar to the case in hand. In the aforesaid case, similar question like the present one came up before the Madhya Pradesh High Court for decision and at the time of deciding the matter, the M.P. High Court in paras 6 and 7 of the aforesaid judgment observed as follows:
6. In the present case it appears that such an enquiry is not made by the court. The Court has not given the reason as to why it formed the opinion that those documents are not relating to the prosecution witness; more particularly, Vijay Kumar. It is true that accused cannot be permitted to delay or protract the trial, however, that does not mean that the doors of his defence should be closed and sealed at initial stage of the trial. Atleast, a fair and reasonable opportunity has to be given to the accused for cross-examining the prosecution witness sufficient to defend himself.
7. Thus, I find that the learned Court has not passed a proper, correct and legal order. The order which has been passed by the trial Court and which is being assailed by this revision petitioner is hereby set aside. The petitioner shall give the details of the documents which he wants to call in the cross-examination of complainant Vijay Kumar. After getting such detailed information, the Court should direct Vijay Kumar to make a statement whether he is in custody of those documents or whether he is having a control over the production of those documents.
Thereafter, the Court should summon the complainant Vijay Kumar or person in possession or control of those documents to produce those documents enabling the petitioner-accused to cross-examine him in the trial. Needless to say that accused would be having right to cross-examine the complainant Vijay Kumar in respect of those documents in respect of the questions which are relevant for the trial. Needless to say that it is the right of the trial Court to take a proper and reasonable decision about the relevancy of the question or questions which are to be asked in the examination-in-chief of cross-examination.
15. This Court has also considered the law reports cited by Mr. Biswas, learned Counsel appearing for the complainant, respondent No. 2. On going through the decision of the Allahabad High Court in Munshi Singh 1953 CriLJ 546 (supra), this court is of considered opinion that there is no doubt that the learned trial court has no power to compel the complainant to produce such a document which the prosecution wants to rely upon in support of its case, but question remairts if such a document is lying with some other person then whether the learned trial court can summon for production of that document, which is necessary for the ends of justice under Section 91 of the Code, which was not dealt with by the Allahabad High Court in Munshi Singh (supra), particularly to provide scope to an accused to confront the witnesses of other side for proving his innocence. According to this Court, the learned trial court can, but it must be after proper inquiry that those documents are really necessary for ends of justice.
16. So far the case of Zahira Habibullah Sheikh 2006 CriLJ 1694 (supra), particularly paras 27 and 28 as relied on by Mr. Biswas is concerned, this Court is of the view that the Apex Court in that case dealt with Sections 344, 311 and 391 of the Evidence Act, 1872 and not Section 91 of the Code, therefore, the said case is distinguishable from the present one.
17. Now, the question remains to be answered is whether the impugned order is an interlocutory order or a final order.
18. How to test whether an order is interlocutory or not that was discussed by the Apex Court in the cases of Amar Nath v. State of Haryana reported in : 1977CriLJ1891 Madhu Limaye v. State of Maharashtra reported in : 1978CriLJ165 and Rajendra Kumar Sitaram Pande v. Uttam reported in : 1999CriLJ1620 . According to this court, interlocutory order is an order where the court did not express its final opinion or in other words, did not decide the issue finally and so far final order is concerned, that will be a final order if the court passes any order deciding finally the issue raised by the parties before the court and there remains nothing for adjudication later on. This Court finds force in the submission of Mr. Chakraborty, learned senior counsel for the petitioner that the impugned order has two parts, one part relates to production of income tax return of the complainant and another relates to maintainability of the proceeding and since the learned trial court decided the issue relating to production of income tax return of the complainant, respondent No. 2 herein, rejecting the prayer of the present petitioner, this part of the order is a final one and so far the question of maintainability of the case/proceeding is concerned, the learned trial court fixed the matter for hearing. Therefore, that part of the order is interlocutory in nature.
19. This Court is of considered opinion that the impugned order is an order final in nature, not an interlocutory one. Therefore, the same is revisable. But question remains whether the petitioner submitted the application for production of documents in proper time or not. According to this Court unless the prosecution and/or complainant examine their witnesses and from the evidence of those witnesses it appears that those documents relating to income tax return of the complainant is called for to confront with witnesses at the time of cross at the trial, the petitioner is not entitled to file any application on that count before framing of charge.
20. In the instant case, it is correct that the learned trial court did not enquire whether the documents called for by the accused are necessary for the purpose of trial or not or to whom the same are lying which was obligatory on his part in view of Section 91 of the Code. The learned trial court also did not state any reason for rejection of such prayer of the petitioner for production of documents, inter alia, income tax return of the complainant, respondent No. 2 herein though the petitioner had right to know the reasons for such rejection of his prayer. As justice is nothing but reasons and when reasons are absent, it can be easily stated that justice is denied to the justice seeker. Therefore, the impugned order so far rejection of the prayer of the petitioner for production of income tax return of the respondent is concerned, is bad in law. Hence, that portion of the order impugned is hereby set aside and the case is remitted to the learned trial court to decide the matter afresh in accordance with law at the appropriate stage.
With the above observations and direction, this Criminal Revision Petition is partly allowed.