Justice M.R. Shah quashed an FIR filed by a property owner against Income Tax officers. The court held the FIR was a belated counterblast intended to pressure officers executing a valid search warrant, constituting an abuse of process of law.
The impugned FIR (CRI-248 of 2010) and criminal proceedings were quashed and set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
R/CR.MA/7620/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 7620 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/-
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| 1. | Whether Reporters of Local Papers may be allowed to see thejudgment**?** |
NO |
|---|---|---|
| 2. | To be referred to the Reporter or not ? | NO |
| 3. | Whether their Lordships wish to see the fair copy of the judgment ? |
NO |
| 4. | Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? |
NO |
| 5. | Whether it is to be circulated to the civil judge ? | NO |
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OMPRAKASH SONARAM CHAUDHARY & 4....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MRS MAUNA M BHATT, ADVOCATE for the Applicant(s) No. 1 - 5 MR BP JHALA, ADVOCATE for the Respondent(s) No. 2
MS. NISHA THAKORE ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
Date : 12/02/2015 ORAL JUDGMENT
1.0. Present application under Section 482 of the Code of Criminal Procedure has been preferred by the applicants herein – original accused – Income Tax Officer to quash and set aside the impugned FIR being CRI- 248 of 2010 registered with the Gandhigram Police Station, Rajkot for the offences punishable under Sections 452, 323, 427 and 114 of the Indian Penal Code.
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2.0. That pursuant to the authorization issued under Section 132(1) of the Income Tax Act issued by the Director of Income Tax (Investigation), Ahmedabad dated 21.06.2010 in the case of one Shri R.P. Jadeja and Shri Jotindrasinh P Jadeja, the applicants herien- Income Tax Officers raided the premises “Praduman Villa”. It is required to be noted that the authorization under Section 132(1) of the Income Tax Act was duly executed in favour of applicant no.1. That the applicants herein while performing their official duty and in view of the authorization issued under Section 132(1) of the Income Tax Act, which was issued for the premises “ Praduman Villa”, the applicants- Authorized Officer entered the said premises- “Praduman Villa” at 8.45 a.m on 24.6.2010. It appears that the applicants made inquiry for the searched person viz. Shri R.P. Jadeja, they were informed that the said Shri R.P. Jadeja was not available at that time. That when the search party was waiting for aforesaid Shri R.P. Jadeja, a mob of around 100-150 persons forcefully entered the aforesaid premises and assaulted the raiding party. The mob also broke a window glass and screen glass of one car parked in the said premises and ran away with certain papers etc. lying in the car. According to the applicants, after the said incident, Shri R.P. Jadeja came to the said premises and he also misbehaved with the search party to perform the official duties. A report to the aforesaid effect was immediately submitted by the applicant no.1 to his superior officers. Based on the aforesaid report, Deputy Director of Income Tax (Investigation)- II, Rajkot under his letter dated 25.6.2010 forwarded the said report to the Police Inspector, Gandhigram Police Station for the offences punishable under Sections 332, 333 and 114 of the Indian Penal Code and other relevant provision for preventing Government Officers from performing official duties. That the said FIR came to be lodged on 02.07.2010. That after a period of approximately 9 days from the date of raid / search of the premises “Praduman Villa”, impugned
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FIR has been lodged by the respondent no.2 herein – original complainant nephew of Shri R.P. Jadeja against the applicants herein Income Tax Officer for the offences 452, 323, 427 and 114 of the Indian Penal Code. It is alleged in the said FIR that he is residing in one of the Bungalow situated in “Praduman Villa” i.e. Bungalow No.6 that on 24.6.2010 when he was out from his residence, he received a telephone from his wife Maheshwariba and she informed that at about 8.30 a.m. the Income Tax Officer entered his house and they misbehaved with the lady family members and behaved rudely. Therefore, immediately he rushed to his house and he had seen the damage car of his cousin, in the compound. It is further alleged in the FIR that when asked his mother and wife told that those persons who entered their bungalow / premises were the officers of the Income Tax Department and when they were asked to show the search warrant, they had shown the warrant, in which, authorization was granted to search bungalow nos. 1 and 4. They further informed him that the Income Tax Officers were informed that their bungalow number is 6 and there are in all six bungalows in the “Praduman Villa” and despite that they have created the situation of terror and damaged the car of Jyanti Rajsinh Jadeja. It is further alleged in the said FIR that when officers were attacked the car and damaged the car, other persons from outside fell with some thieves have entered the premises and therefore, they entered the compound and they tried to convince the Income Tax Officer. Therefore, it is alleged that though the Income Tax Officer were not having any authorization to enter his premise, they entered his premises and misbehaved with the family members and also attacked the car and caused damage to the car of the Jyanti Rajsinh Jadeja- his cousin and therefore, it is alleged that applicants herein- original accused Income Tax Officers has committed the offence under Sections 452, 323, 427 and 114 of the Indian Penal Code. Hence, applicants herein- original accused have preferred present
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application under Section 482 of the Code of Criminal Procedure to quash and set aside the impugned FIR.
3.0. Shri M.R. Bhatt, learned counsel for the applicants has vehemently submitted that the impugned FIR against the applicants herein – original accused is nothing but an abuse of process of Court and law and only with a view to pressurize the applicants.
3.1. It is submitted that as such earlier on 28.6.2010 the FIR was registered on the basis of the report of applicant no.1 against some 100 to 150 persons being CR-I-242 of 2010 for the offences punishable under Sections 332, 186, 323, 384, 143, 504 and 506(2) of the Indian Penal Code and as a counter blast to the aforesaid FIR filed by the petitioners, the impugned FIR has been lodged by the respondent no.2 hereinoriginal complainant belatedly i.e. on 2.7.2010. It is submitted that therefore, filing of the FIR by the respondent no.2 herein – original complainant is nothing but abuse of process of law. It is submitted that the impugned FIR has been filed solely with a view to pressurize the Income Tax Department and its officers from carrying out their official function.
3.2. It is submitted that as such the applicants were having authorization search warrant under Section 132(1) of the Income Tax Act with respect to premise “Praduman Villa” and in case of one R.P. Jadeja. It is submitted that as such the “Praduman Villa” was consisting of 6 bungalows and therefore, applicants does inquire about residence of Shri R.P. Jadeja. It is further submitted that at that time Shri R.P. Jadeja was not available and therefore, the applicants contacted the said Shri R.P. Jadeja on mobile and told him to come to the residence. It is submitted that before the aforesaid Shri R.P. Jadeja comes, some 100
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-150 persons entered the compound forcefully and broke the glass of the car standing in the compound and even attacked the raiding party – applicants and they have also ran away with important papers. It is submitted that immediately a report was made to the superior officer who thereafter contacted Police Inspector, Gandhigram Police Station, Rajkot and thereafter on the basis of report given by applicant no.1, an FIR came to be lodged and as a counter blast to the aforesaid, the impugned FIR has been lodged and that too after a period of approximately 9 days.
3.3. It is further submitted by Shri Bhatt, learned counsel for the applicants that as such applicants herein were performing their statutory duty conferred under the Income Tax Act. It is submitted that as such apprehending some untoward incident, raiding party also sought assistance from the local police and as search party consisted of five lady members viz. two from the Income Tax Department and three from the Police Department over and above other Income Tax Officer and as such, no such incident has been sought to be alleged to have been occurred.
3.4. It is submitted that as such filing of the FIR is nothing but an afterthought solely with a view to derail the further investigation by the officers of the Income Tax Department.
3.5. It is further submitted by Shri Bhatt, learned counsel for the applicants that as such the complainant had no personal knowledge and the impugned FIR has been lodged on hearsay and on the basis of information given to him by his relative.
3.6. It is further submitted that as such the applicants herein had acted in discharge of their official duty and as such their actions are
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protected under Section 293 of the Income Tax Act and the relevant provision of the Code.
Making above submissions, it is requested to allow the present application and to quash and set aside the impugned FIR / Criminal Proceedings.
4.0. It is further submitted that one Shri B.P. Jhala, learned advocate has appeared on behalf of respondent no.2- original complainant. However, today when the present application is taken up for final hearing, Shri Jhala, learned advocate for the respondent no.2original complainant has chosen to remain absent. Application was called out in the first session, however as the learned advocate for the original complainant remained absence, the same was kept in the second session and in the second session also the learned advocate for respondent no.2 has chosen to remain absent. Even on 11.2.2015 also the learned advocate for the respondent no.2 – original complainant remained absent. However, in the interest of justice it was adjourned to today and as observed herein above, though the matter was called twice today, learned advocate for the respondent no.2- original complainant chosen to remain absent. Under the circumstances, present application is heard ex-parte so far as respondent no.2 herein -original complainant is concerned.
5.0. Heard Shri M.R. Bhatt, learned counsel for the applicants and Ms. Thakore, learned Additional Public Prosecutor appearing on behalf of the State. At the outset, it is required to be noted that all the applicants herein -original accused were the Income Tax Officer and they were part of the raiding party / search party. That there was valid authorization in their favour issued by the appropriate authority, under Section 132(1) of the Income Tax Act. It appears that the said
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authorization was in the case of Shri R.P. Jadeja and for the premises “Praduman Villa”. It appears that when the applicants- search party raided the premises “Praduman Villa” at that time Shri R.P. Jadeja was not at his residence and therefore, the applicants contacted the said Shri R.P. Jadeja on mobile and requested him to come to residence. In the meantime and before Shri R.P. Jadeja reaches his residence, some 100150 persons forcefully entered the compound and broke the glass of the car standing in the compound and even stolen some valuable papers. The applicant no.1 herein immediately reported the incident to his higher-ups – Deputy Director of Income Tax (Investigation)-II, Rajkot, sent the report made by the applicant no.1 to the Police Inspector, Gandhigram Police Station and on the basis of the aforesaid information, FIR came to be lodged on 24.6.2010 being CR-I- No.242 of 2010 for the offences under Sections 332, 186, 323, 388,143,504 and 506(2) of the Indian Penal Code. It appears that as a counter blast to the aforesaid FIR i.e. after a period of 9 days, respondent no.2 herein has lodged the FIR against the applicants herein. Considering the aforesaid facts and circumstances of case, it appears that the impugned FIR has been lodged after a period of 9 days as a counter blast to the FIR lodged on the information given by the applicant no.1- Income Tax Officer only with a view to pressurize the Income Tax Officer. It is required to be noted that as such the applicants were performing their official statutory duty in fact there were in all five ladies officers in the search party out of which two officer from the Income Tax Department and three officers from the Police Department. It is also required to be noted at this stage that as such the complainant had no personal knowledge about the incident and the allegation made by him are hearsay. Considering overall facts and circumstances of the case and more particularly when the applicants herein who had at the relevant time Officers of the Income Tax Department and forming part of the search party and they were
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performing their statutory duty conferred under the provision of Income Tax after obtaining the necessary authorization under Section 132(1) of the Income Tax Act and impugned FIR is nothing but counter blast to FIR lodged at the instance of the applicants and that even impugned FIR is lodged lodged approximately after a period of 9 days, this Court is of the opinion that this is a fit case to exercise the powers under Section 482 of the Code of Criminal Procedure and to quash and set aside the impugned FIR / Criminal Proceedings as it is nothing but abuse of process of law and Court.
6.0. In view of the above and for the reasons stated above, present application succeeds. The impugned Criminal Proceedings / FIR being CR-I- 248 of 2010 registered with the Gandhigram Police Station, Rajkot filed by the respondent no.2- original complainant is hereby quashed and set aside. Rule is made absolute to the aforesaid extent.
sd/- (M.R.SHAH, J.)
Kaushik
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3 issues framed by the court
Whether the High Court should exercise its inherent powers under Section 482 of the CrPC to quash an FIR lodged as an afterthought to pressure Income Tax officers performing statutory duties.
Whether the FIR filed by the complainant constitutes an abuse of the process of the court.
Whether the allegations in the FIR are based on hearsay given the complainant's lack of direct knowledge of the incident.
3 provisions across 3 enactments
Omrakash Sonaram Chaudhary & 4 others
State of Gujarat
Shri R.P. Jadeja's Nephew
m.r. shah
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
