Supreme Court of India
BABITA LILA & ANOTHERversusUNION OF INDIA
- Citation
- 2016 INSC 640
- Decided
- 31 August 2016
- Disposal
- Appeal(s) allowed
- Bench
- PINAKI CHANDRA GHOSE
Holding
The complaint under CrPC s.195 filed by the Deputy Director of Income Tax (Investigation) is invalid because he is not the appellate forum for orders of the assessing officers, rendering the proceedings unsustainable.
Summary
The appellants, a husband‑wife duo, were searched under the Income Tax Act at their residences in Bhopal and Aurangabad. During the search they denied possessing a safe‑deposit locker, which was later discovered at Aurangabad, leading the Deputy Director of Income Tax (Investigation) Bhopal to lodge a complaint under CrPC s.195 alleging false statements under several IPC sections. The trial court issued process, and the High Court upheld the complaint. The Supreme Court examined whether the Deputy Director was the appropriate authority to file a s.195 complaint, interpreting the appellate hierarchy under the Income Tax Act and the meaning of "ordinarily" in s.195(4). It held that only the Deputy Commissioner (Appeals) is the appellate forum for orders of assessing officers, so the Deputy Director could not lodge the complaint. The Court also found that the offence could be tried in either Bhopal or Aurangabad under CrPC ss.177‑179, but the complaint was nonetheless unsustainable because of the complainant’s lack of competence. Consequently, the proceedings were set aside.
Issues considered
- Whether the Deputy Director of Income Tax (Investigation) Bhopal is the appellate authority within the meaning of CrPC s.195(4) to lodge a complaint against the appellants.
- Whether the Chief Judicial Magistrate, Bhopal has territorial jurisdiction to take cognizance of the alleged offences arising from simultaneous search operations at Bhopal and Aurangabad.
- Interpretation of the term "ordinarily" in s.195(4) of the CrPC and its impact on the competence of the complainant.
- Whether the complaint under s.195 is maintainable in view of the statutory scheme of the Income Tax Act.
Legislation cited
- Central Board of Direct Taxes Act, 1963
- Code of Criminal Procedure, 1973s. 177, s. 178, s. 179, s. 190, s. 195
- Income Tax Act, 1961s. 116, s. 118, s. 120, s. 124, s. 131, s. 132, s. 246, s. 246A
- Indian Penal Code, 1860s. 120B, s. 172-188, s. 191, s. 193, s. 196, s. 199, s. 200, s. 205-211, s. 228, s. 34, s. 420, s. 463, s. 471, s. 475, s. 476
Subjects
Section 195 CrPCIncome Tax Act appellate jurisdictionfalse statementsearch operationterritorial jurisdictionordinarilycasus omissuscomplaint maintainabilityDeputy Director of Income Tax
Judgment
[2016] 7 S.C.R. 604
A BABITA LILA & ANOTHER
v.
UNION OF INDIA
(Criminal Appeal No. 824of2016)
B AUGUST 31, 2016
[PINAKI CHANDRA GHOSE AND AMITAVA ROY, JJ.]
Code of Criminal Procedure, 1973:
s.195 - Complaint by Deputy Director of IT against
c appellants-assessee for making false statements during search
operations - Maintainability of - Trial court held that sufficient
ground was made out against appellants to proceed under !PC -
Quashing of complaint sought on the ground that as search
operations were undertaken by the LT. Os of Nashik and Dhule, the
complaint could not have been lodged by the Deputy Director of IT,
D
Bhopal who was not the appellate authority in terms of s.195(4) -
High Court declined to quash complaint - Held: Under IT Act, the
Deputy Commissioner (Appeals) is designated to be the appellate
forum from the orders as enumerated u/s.246(1) of the Act - Neither,
by the hierarchy of the income tax authorities as listed in s.116 of
E the Act nor in the notification issued u/s.118, the Deputy Director
of Income Tax is considered to be an appellate forum to which
appeals from the orders/decisions of the I. T. Os./assessing officers
would ordinarily lie within the meaning of s.195(4) of the Code -
The statute does not suffer from casus omissus so as to recognise
the Deputy Director of IT as an appellate forum - Deputy Director
F
of IT Bhopal, therefore, cannot be construed to be an authority to
whom appeal would ordinarily lie from the decisions/orders of the
I. T. Os involved in the search proceedings so as to empower him to
lodge the complaint in view of the restrictive preconditions imposed
by s.195 - Doctrines/Principles - Doctrine of casus omissus.
G s.195 - Complaint by Deputy Director of IT, Bhopal against
appellant-assessee for making false statements during search
operations - Appellants husband and wife resident of Bhopal and
Aurangabad - Search operation conducted by authorities under
the IT Act at Bhopal and Aurangabad - Search at Aurangabad
H
604
BABITA LILA & ANOTHER v. UNION OF INDIA 605
conducted by ITO, Nashik and ITO, Dhule - Appellants allegedly A
made false statements denying of having any locker in their names
- Trial court held that sufficient ground was made out against .
appellants to proceed under !PC - Issuance of summons - Quashing
of complaint sought on the ground that since no part of the alleged
offence was committed within territorial limits of Bhopal Court, it
B
had no jurisdiction to entertain the complaint - High Court declined
to interfere - Held: Appellants as assessees, had residences both at
Bhopal and Aurangabad and had been submitting their income tax
returns at Bhopal - The search operations were conducted
simultaneously both at Bhopal and Aurangabad in course whereof
allegedly the appellants, in spite of queries made, did not disclose c
that they in fact did hold a locker located at Aurangabad - They in
fact denied to hold any locker, either individually or jointly - The
search conducted simultaneously at Bhopal and Aurangabad has
to be construed as a single composite expedition with a common
mission - Having regard to the overall facts and the accusation of
D
false statement made about the existence of the locker in such a
ioint operation, it cannot be deduced that in the peculiar facts and
circumstances, no part of the offence alleged had been committed
within the jurisdictional limits of the Chief Judicial Magistrate,
Bhopal - Income Tax Act, 1961 - ss.116, 118, 177 to 179 - Penal
Code, 1860 - ss.191, 193, 200. E
s.195(4) - 'ordinarily' - Connotation of
Words and phrases: 'ordinary' - Meaning of
Allowing the appeal, the Court
HELD: 1. Section 195(l)(b) of the Code prohibits taking F
of cognizance by a court vis-a-vis the offences mentioned in the
three clauses (i), (ii) and (iii) except on a com plaint in writing of
the Court when the offence(s) is/are alleged to have been
committed in or in relation to any proceeding before it or in
respect of a document produced or given in evidence in such a 0
proceeding or by such officer of that court as it may authorise in .
writing or by some other court to which the court (in the
proceedings before whi.ch the offence(s) has been committed) is
subordinate. Sub-section (3) of Section 195 clarifies that the term
"Court" would mean a Civil, Revenue or Criminal court and would
H
606 SUPREME COURT REPORTS [2016] 7 S.C.R.
A include a tribunal constituted by or under a Central, Provincial
or State Act, if declared by that Act to be a Court for the purposes
of this section. In terms of sub-section (4), for the purposes of
sub-section (l)(b), a Court shall be deemed to be subordinate to
the Court to which appeals ordinarily lie from the appealable
decrees or sentences of such former Court, or in the case of a
B
Civil Court from whose decrees no appeal ordinarily lies, to the
principal Court having ordinary original civil jurisdiction within
whose local jurisdiction, such Civil Court is situated. [Paras 41,
42 and 43] (626-D-H]
2. The proviso to sub-section (4) explains that where
c appeals lie to more than one Court, the Appellate Court of the
inferior jurisdiction shall be the Court to which such Court (in
the proceedings before which the offence has been committed)
shall be deemed to be subordinate and where appeals lie to a
Civil and also to a Revenue Court, the subordination would be
D determined by the nature of the case or the proceeding, in
connection with which the offence is alleged to have been
committed. Noticeably Section 195 of the Code appears under
Chapter XIV enumerating the conditions requisite for initiation
of proceedings thereunder. Though Section 190 of the Code
outlines the categories of inputs on which a Magistrate of the
E first class,. and any Magistrate of the second class specially
empowered, can take cognizance of the offence alleged, Section
195 dealing with the prosecution for contempt of lawful authority
of public servant and for offences against public justice or relating
to documents given in evidence, unmistakably marks a departure
F from the usual modes of taking cognizance under Section 190 by
prescribing the restrictions. The provisions of Section 195 of the
Code are mandatory so much so that non-compliance thereof
would vitiate the prosecution and all consequential orders. There
is thus no escape from the proposition that for a valid complaint
under Section 195 of the Code, the mandate thereof has to be
G essentially abided and as is easily perceivable, this is to prevent
frivolous, speculative and unscrupulous allegations relating to
judicial proceedings in any court, lest the process of law is abused
and public time is wasted in avoidable litigation. That the search
operations did constitute a proceeding under the Act before an
H
BABITA LILA & ANOTHER v. UNION OF INDIA 607
income tax authority and that therefore the same is deemed to A
be a judicial proceeding within the meaning inter alia of Sections
193 and 196 IPC and that every income tax authority for the said
purpose would be deemed to be a civil court for the purposes of
Section 195, is not an issue between the parties. [Paras 44, 45,
46, 47, 48) [627-A-D, H; 628-A-B]
B
C. Muniappan and Others v. State of Tamil Nadu 2010
(10) SCR 262 : (2010) 9 SCC 567; Sachida Nand Singh
and Another v. State of Bihar and Another 1998 (1)
SCR 492 : (1998) 2 SCC 493 - relied on.
3. As enumerated under Section 116 of Chapter XIII of the c
Act, Deputy Director of Income tax/Deputy Commissioner of
Income Tax/Deputy Commissioner of Income Tax (Appeals)
amongst others are the designated income tax authorities.
Section 120 provides that im.ome tax authorities would exercise
all or any of the powers and perform all or any of the functions
conferred on or as the case may be assigned to such authorities D
under the Act in accordance with such directions as the Board
may issue in this regard. As a necessary corollary, the Board can
also by general or special order and subject to such conditions,
restrictions or limitations as may be specified therein, authorise
such authorities as enumerated in sub-section (4) thereof to E
perform such functions, as may be assigned. The powers of an
assessing officer vested with the jurisdiction as permitted by
Section 120 of the Act, extend as is clarified by Section 124, to
any person carrying on business or profession, if the place at
which he carries on his business or profession is situated within
the limits of the area over which such officer had been vested F
with the jurisdiction or ifthe person concerned carries on business
in more places than one, if the principal place of his business or
profession is situated within the area over which the assessing
officer has jurisdiction. In addition, such officer would have also
jurisdiction in respect of any other person residing within the G
area. [Paras 50, 53, 54) (628-F; 629-F-H; 630-A-B]
4. The bone of contention lies in the interpretation of
Section 246 of the Act in particular which is contained in Chapter
XX dealing with Appeals and Revision. Whereas Section 246
H
608 SUPREME COURT REPORTS [2016] 7 S.C.R.
A catalogues the orders of an assessing officer other than those of
the Deputy Commissioner from which appeal would lie to the
Deputy Commissioner (Appeals), Section 246A lists the orders
from which appeal would lie to the Commissioner (Appeals).
Admittedly, the categories of orders specified under Section
246(1) of the Act do not include one stemming from any
B
proceeding before an assessing officer under Section 132 of the
Act pertaining to search or seizure. Though under clause (d) of
Section 116, Deputy Director of Income Tax, Deputy
Commissioner of Income Tax and Deputy Commissioner of
Income Tax (Appeals) have been bracketed together, it is only
c the Deputy Commissioner (Appeals), as is apparent from Section
246(1), who has been conferred with the appellate jurisdiction to
entertain appeals, albeit from specified orders passed by an
assessing officer as mentioned in that sub-section. The Deputy
Director of Income Tax in particular, has not been designated to
be the appellate authority or forum from such orders or any other
D
order of the assessing officer. LT.Os. are included in the classes
of income tax authorities as per Section 116 of the Act and having
regard to the hierarchy designed, they are subordinate in rank to
the Deputy Director of Income Tax, Deputy Commissioner of
Income Tax and the Deputy Commissioner of Income Tax
E (Appeals). [Paras 56, 57) [630-E-H; 631-A-B]
5. The word "ordinarily" denote developments which are
likely to occur, exist or ensue in the regular or normal course of
events as logically and rationally anticipated even though not
set out or expressed in categorical terms. This is a compendious
F expression to encompass all events reasonably expected to
occur in the usual and common course of occurrences and are
expected to so happen unless prohibited, prevented or directed
by some express and unexpected interventions to the contrary.
Section 195 of the Code read as a whole unambiguously impose
restrictions in the matter of lodgement of complaint qua the
G offences as mentioned in sub-section (l)(b) thereof in particular
and therefore as a corollary, any interpretation for identifying the
court/authority/forum contemplated thereby to be competent has
to be in furtherance of the restraint and not in casual relaxation
thereof. Consequently, therefore, the exposition of the provisions
H of the corresponding substantive law which designs the forums
BABITA LILA & ANOTHER v. UNION OF INDIA 609
or authorities and confers original and appellate jurisdiction has A
also to be in aid of the underlying objectives of the restrictions
stipulated. Any postulation incompatible with the restrictive
connotations would be of mutilative bearing thereon and thus
frustrate the purpose thereof, a consequence not approvable in
law. Section 195 of the Code clearly carves out an exception to
B
the otherwise conferred jurisdiction on a court under Section 190
to take cognizance of an offence on the basis of the complaints/
information from the sources as enumerated therein. (Paras 60,
61] [631-F-H; 632-A-C]
Blacks Law Dictionary, to•h Edition - referred to.
c
6. It is a trite law that there is no presumption that a casus
omissus exists and a court should avoid creating a casus omissus
where there is none. It is a fundamental rule of interpretation
that courts would not fill the gaps in statute, their functions being
ius discre nonfacere i.e. to declare or decide the law. The judicial
formulations on the theme is so consistent and absolute in terms D
that no further dilation is essential. The scheme of the Act and
the legislative design being unreservedly patent in the instant
case, that it is plainly impermissible to acknowledge the Deputy
Director of Income Tax to be the forum to which an appeal would
ordinarily lie from an order/decision of an assessing officer/I.T.O. E
The present is thus not a case where this Court can premise
that the statute suffers from C(ISUs omissus so as to recognise
the Deputy Director of Income Tax as such an appellate forum.
(Paras 63, 65] [632-H; 633-A, H; 634-A-B]
Petroleum and Natural Gas Regulatory Board vs. F
Indraprastha Gas Limited and Others 2015 (7) SCR
215 : (2015) 9 SCC 209; Sree Balaji Nagar Residential
Association vs. State of Tamil Nadu and Others 2014
(7) SCR 799 : (2015) 3 SCC 353 - relied on.
7. The Parliament has unmistakably designated the Deputy G
Commissioner (Appeals) to be the appellate forum from the
orders as enumerated under Section 246(1) of the Act. This
however, does not detract from the recognition of this authority
to be the appellate forum before whom appeals from the decisions
of an assessing officer or of an officer of the same rank thereto
H
610 SUPREME COURT REPORTS [2016] 7 S.C.R.
A would generally and ordinarily lie even in the contingencies not
referred to in particular in sub section 1 of Section 246. This is
more so, in absence of any provision under the Act envisaging
the Deputy Director of Income Tax to be an appellate forum in
any eventuality beyond those contemplated in Section 246(1) of
the Act. Neither the hierarchy of the income tax authorities as
B
listed in Section 116 of the Act nor in the notification issued under
Section 118 thereof, nor their duties, functions, jurisdictions as
prescribed by the cognate provisions alluded heretobefore, permit
a deduction that in the scheme of the legislation, the Deputy
Director of Income Tax has been conceived also to be an appellate
c forum to which appeals from the orders/decisions of the I.T.Os./
assessing officers would ordinarily lie within the meaning of
Section 195(4) of the Code. [Paras 67) (634-G-H; 635-A-C]
Y. Abraham Ajith and Others vs. Inspector of Police,
Chennai and Another 2004 (3) Suppl. SCR 604 :
D (2004) 8 SCC 100; Bhura Ram and others vs. State of
Rajasthan and Another (2008) 11 SCC 103 -
distinguished.
8.1 The appellants as assessees, had residences both at
Bhopal and Aurangabad and had been submitting their income
E tax returns at Bhopal. The search operations were conducted
simultaneously both at Bhopal and Aurangabad in course whereof
allegedly the appellants, in spite of queries made, did not disclose
that they in fact did hold a locker located at Aurangabad. They in
fact denied to hold any locker, either individually or jointly. The
locker, eventually located, though at Aurangabad, has· a
F perceptible co-relation or nexus with the subject matter of
ass.essment and thus the returns filed by the appellants at Bhopal
which in turn were within the purview of the search operations.
The search conducted simultaneously at Bhopal and Aurangabad
has to be construed as a single composite expedition with a
G common mission. Having regard to the overall facts and the
accusation of false statement made about the existence of the
locker in such a joint drill, it cannot be deduced that in the singular
facts and circumstances, no part of the offence alleged had been
committed within the jurisdictional limits of the Chief Judicial
Magistrate, Bhopal. [Para 71] [636-D-F)
H
BABITA LILA & ANOTHER v. UNION OF INDIA 611
8.2 Ordinarily every offence ought to be inquired into and A
tried by a court within whose local jurisdiction it had been
committed as is manda~ed by Section 177 of the Code. Section
178, however marks a departure contingent on the eventualities
as listed in clauses (a),(b), (c) and (d) of Section 178 to identify
the court that would have the jurisdiction to try the offences as
B
contemplated therein. A cumulative reading of Sections 177, 178
and 179 of the Code in particular and the inbuilt flexibility
discernible in the latter two provisions shows that in the attendant
facts and circumstances of the case where a single and combined
search operation had been undertaken simultaneously both at
Bhopal and Aurangabad for the same purpose, the alleged offence c
can be tried by courts otherwise competent at both the places.
To confine the jurisdiction within the territorial limits of the court
at Aurangabad would amount to impermissible and illogical
truncation · of the am bit of Sections 178 and 179 of the Code.
The objection with regard to the competence of the Court of the
D
Chief Judicial Magistrate, Bhopal is hereby rejected. The
inevitable consequence of the determination in its entirety
however is that the complaint is unsustainable in law having been
filed by an authority, incompetent in terms of Section 195 of the
Code. [Paras 73, 75] [637-D, G-H; 638-A-B]
Dashrath Rupsingh Rathod v. State of Maharashtra and E
Another 2014 (11) SCR 921 : (2014) 9 SCC 129- relied
on.
Ku/dip Singh v. The State of Punjab and Another 1956
SCR 125; Lalji Haridas v. State of Maharashtra and
Another 1964 (6) SCR 700; Rajesh Kumar and Others F
v. Deputy C.I. T. and Others 2006 (8) Suppl. SCR 284
: (2007) 2 SCC 181; Union of India and others v.
Dharmendar Textile Processors and others (2008) 306
ITR 277 (SC) - referred to.
Stock v. Frank Johns (Tipton) Limited (1978) 1 All ER G
948 (HL) - referred to.
Case Law Reference
1956 SCR 125 referred to Para 10
19(14 (6) SCR 700 referred to Para 10 H
612 SUPREME COURT REPORTS [2016] 7 S.C.R.
A 2006 (8) Suppl. SCR 284 referred to Para 10
2004 (3) Suppl. SCR 604 distinguished Para 10
(2008) 11 sec 103 distinguished Para 10
2010 (10) SCR 262 relied on Para 46
B 1998 (1) SCR 492 relied on Para 46
(2008) 306 ITR 277 (SC) referred to Para 63
2015 (7) SCR 215 relied on Para 64
2014 (7) SCR 799 relied on Para64
c 2014 (11) SCR 921 relied on Para 74
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
824 of2016.
From the Judgment and Order dated 20.12.2011 of the High Court
o of Madhya Pradesh, Principal Seat at Jabalpur, in Misc. Criminal Case
No. 8819 of201 I.
Ms. Sangeeta Kumar, Ms. Vithika Garg, Ms. Vidushi Garg, Advs.,
for the Appellants.
Ranjit Kumar, SG, Mrs. Anil Katiyar, Ms. Binu Tamta, Manish
E Pushkarna, Advs. for the Respondent.
The Judgment of the Court was delivered by
AMITAVA ROY, J. I. Leave granted.
2. Being aggrieved by the rejection of their cha! lenge to the initiation
F of their prosecution under Sections 109/191/193/196/200/420/120B/34
!PC on the basis of a complaint made by the Deputy Director oflncome
Tax (Investigation)-!, Bhopal (M.P.), both on the ground of lack of
competence of the complainant and ofjurisdiction of the Trial Court at
Bhopal, the appellants seek the remedial intervention of this Court under
Article 136 of the Constitution oflndia.
G
3. The appellants, who are husband and wife, are residents of
both Bhopal and Aurangabad. A search operation was conducted by
the authorities under the Income Tax Act, 1961 (for short, hereinafter
referred to as "the Act") on 28.10.2010 at both the residences of the
appellants, in course whereof their statements were recorded on oath
H
BABITA LILA & ANOTHER v. UNION OF INDIA 613
[AMITAVA ROY, J.]
under Section 131 of the Act. On a query made by the authorities, it is A
alleged that they made false statements denying of having any locker
either in individual names or jointly in any bank. It later transpired that
they did have a safe deposit locker with the Axis Bank (formerly known
as UTI Bank) at Aurangabad which they had also operated on
30.10.20 I 0. The search at Aurangabad was conducted by the Income
B
Tax Officer, Nashik and Income Tax Officer, Dhule and the statements
of the appellants were also recorded at Aurangabad.
4. Based on the revelation that the appellants, on the date of the
search, did have one locker as aforementioned and that their statements
to the contrary were false and misleading, a complaint was filed as afore-
stated under the above-mentioned sections of the Indian Penal Code by c
the Deputy Director oflncome Tax (lnvestigation)-I, Bhopal (M.P.) on
30.5.2011 in the court of the Chief Judicial Magistrate, Bhopal, (M.P.)
and the same was registered as R.T. No. 5171 of 2011.
5. The Trial Court on 9.6.2011, took note of the offences imputed
and issued process against the appellants. In doing so, the Trial Court, D
amongst others, noted that the search proceedings undertaken by the
authorities under Section 132 of the Act were deemed to be judicial
proceedings in terms of Section 136 and in course whereof, as alleged,
the appellants had made false statements with regard to their locker and
that on the basis of the documents and evidence produced on behalf of E
the complainant, sufficient grounds had been made out against them to
proceed under Sections 191, 193, 200 IPC.
6. The appellants impugned this order of the Trial Court before
the High Court under Section 482 Cr.P.C. (for short hereinafter to be
referred to as "the Code") and sought annulment thereof primarily on F
the ground that the search operations having been undertaken by the
I. T.Os. ofNashik and Dhule, the complaint could not have been lodged
by the Deputy Director oflncome Tax (Investigation)-!, Bhopal (M.P.)
who was not the appellate authority in terms of Section 195(4) of the
Code and further no part of the alleged offence having been committed
within the territorial limits of the Court of the Chief Judicial Magistrate, G
Bhopal, it had no jurisdiction to either entertain the complaint or take
cognizance of the accusations. By the order impeached herein, the
High Court has declined to interfere on either of these contentions.
7. We have heard Ms. Sangeeta Kumar, learned counsel for the
H
614 SUPREME COURT REPORTS [2016] 7 S.C.R.
A appellants and Mr Ranjit Kumar, learned Solicitor General for the
respondent.
8. Profusely referring to Section 195 of the Code as a whole, it
has been urged on behalf of the appellants that the Deputy Director of
Income Tax (lnvestigation)-1, Bhopal (M.P.), in the facts of the case
B was not competent to lodge the complaint, he being not the authority to
whom appeals would ordinarily lie from the orders or actions of the
I.T.Os., Nashik and Dhule. As the statements of the appellants were
recorded in the course of a search under Section 132 of the Act which
was a judicial proceeding and for that matter, the concerned LT.Os.,
Dhule and Nashik were deemed to be civil courts, it has been argued
c that in observance of the mandate of Section 195 (4) of the Code, the
complaint could be lodged either by the authorities conducting the search
or by the authority to whom ordinarily an appeal would lie from the
orders/decisions and actions of the income tax authorities undertaking
the search. It has been asserted with reference to Sections 246 and
D 246A of the Act in particular, that the complainant, the Deputy Director
oflncome Tax (Investigation)-!, Bhopal (M.P.) is not the authority/forum
to whom appeal lies from the orders of the LT.Os. involved and thus
was not a Court as contemplated in Section 195( I )(b) or the appellate
forum under Section 195(4) of the Code.
E 9. It has been emphatically maintained on behalf of the appellants
that having regard to the place of search, the recording of their statements
as well as of the location of the locker, no cause of action for initiation of
the criminal proceedings had arisen within the jurisdiction of the court of
the Chief Judicial Magistrate, Bhopal in terms of Sections 177 and 178
of the Code and thus the High Court had grossly erred in deciding contrary
F thereto. It has been argued that the rejection of their plea by the High
Court on the ground that the Deputy Director of Income Tax
(Investigation)-1, Bhopal (M.P.) was an officer superior in rank to the
LT.Os. conducting the search is patently flawed and unsustainable in
law and on facts, having regard to the peremptory perquisites of a valid
G complaint under Section 195 of the Code.
10. Reliance on the decisions of this Court in Ku/dip Singh vs.
The State of Punjab and Another 1956 SCR 125, Lalji Hark/as vs.
State ofMallaras/ltra am/ Another 1964 (6) SCR 700, Rajesh Kumar
and Others vs. Deputy C.I. T. and Others (2007) 2 SCC 181, Y.
Abraham Ajith and Others vs. Inspector of Police, C/le1111ai and
H
BABITA LILA & ANOTHER v. UNION OF INDIA 615
[AMITAVA ROY, J.]
Anotlter (2004) 8 SCC 100 and Bltura Ram and others vs. State of A
Rajastltan andAnother (2008) 11 SCC 103 has been made in buttressal
of the above assertions.
11. In refutation of the arguments advanced on behalf of the
appellants, the learned Solicitor General has assertively endorsed the
impugned findings, contending that the decision assailed is based on a B
detailed reference to the provisions of the Act enumerated in Chapters
XIII and XX and a correct analysis thereof. He has maintained that
having regard to the scheme of these chapters in particular and the
underlying legislative intent ascertainable therefrom, the Deputy Director
oflncome Tax (Investigation)-!, Bhopal (M.P.) had the competence and
jurisdiction to lodge the complaint at Bhopal. This authority being
c
admittedly and as patent from the hierarchy enumerated by the Act,
higher in rank than the LT.Os. who had conducted the search and
investigation, did have the authority to file the complaint and that thereby
the prescriptions of Sections 195(1 )(b) and l 95(g) of the Code had not,
in any way, been contravened. This is more so as the powers of any D
income tax authority under the Act and his/her jurisdiction to perform
any function is not limited or restricted but has been consciously enlarged
to deal with any contingency so as to advance the objectives of the
legislation, he urged.
12. Vis-a-vis the competence of the court of the Chief Judicial E
Magistrate, Bhopal, the learned Solicitor General insisted that as the
appellants were the residents, both of Bhopal andAurangabad and search
operations were conducted simultaneously at both the places, and further
as they had been filing their income tax returns at Bhopal, the Trial
Court before which the complaint had been filed, was competent to take
cognizance of the offences alleged in terms of Section 178 (b) and (d) F
of the Code. To reinforce the above, the decision of the Constitution
Bench of this Court in Lalji Haridas (supra) has been pressed into
service.
13. Before adverting to the competing contentions, it would be
apt to note the conclusions of the High Court on these two counts. In G
addition to the admitted factual aspects narrated hereinabove, the High
Court upheld the ju_risdiction of the Chief Judicial Magistrate, Bhopal by
taking note also of the fact that the income tax returns relatable to the
undisclosed property i.e. the locker had been filed at Bhopal. The facts,
to reiterate, that the appellants were residents of Bhopal and Aurangabad,
H
616 SUPREME COURT REPORTS [2016] 7 S.C.R.
A and that the search operations were conducted simultaneously at both
the places were noted as well .
. 14. Qua the competence of the Deputy Director, Income Tax
(Investigations)-! Bhopal, the High Court held the view that he being
admittedly an officer superior in rank to the LT.Os. conducting the search,
B the institution of the complaint by him was not vitiated by any lack of
authority. Reference to Section 136 of the Act, whereunder any
proceeding before an income tax authority would be a judicial proceeding
and that for that matter, every income tax authority is deemed to be a
civil court was recorded as well. The High Court did refer to the Section
195 of the Code to enter a finding that the Deputy Director, Income Tax
c (Investigations)-! Bhopal being an officer superior to the LT.Os.
undertaking the search and to whom an appeal from their orders/
decisions/actions ordinarily lay, was a civil court as contemplated
thereunder to lodge the complaint.
15. The competing contentions have received our due
D consideration. The rival submissions stir up two major issues pertaining
to the maintainability and adjudication of the complaint lodged before the
Chief Judicial Magistrate, Bhopal, (M.P.) by the Deputy Director, Income
Tax (Investigation)-!, Bhopal, (M.P) in the face of the prescription of
Section 195( I )(b) of the Code, in particular read with the other cognate
E sub-sections thereof as well as the limits of the territorial jurisdiction of
the court before which the prosecution of the appellants has been initiated
in the context of Section 177 of the Code.
16. Having regard to the decisive bearing of the adjudication on
the validity or otherwise of the complaint by the Deputy Director, Income
F Tax (Investigation)-!, Bhopal, (M.P). in the textual facts, expedient it
would be to dwell on this aspect at the threshold.
17. The admitted facts reveal that the appellants have residences
both at Bhopal and Aurangabad and file their returns of income tax at
Bhopal. On 28.10.20 I 0, search operations under Section 132 of the Act
G were simultaneously conducted at both the places. In the course of the
interrogation of the appellants, more specifically on the aspect as to
whether they or any of them either individually or jointly did hold any
locker, the answer was in the negative. The accusation of the authorities
is that further investigation revealed that they did hold a locker in the
Axis Bank (formerly known as UT! Bank), Kranti Chowk, Aurangabad
H
BABITA LILA & ANOTHER v. UNION OF INDIA 617
[AMITAVA ROY, J.]
which had been operated by appellant No. 1 on 30.10.2010. In this A
factual backdrop, the complaint had been filed by the Deputy Director,
Income Tax (lnvestigation)-I, Bhopal, (M.P) in the court of Chief Judicial
Magistrate, Bhopal, (M.P.) asserting that by making such false statement
in the course of search operations which were judicial proceedings in
terms of Sectior> 136 of the Act, the appellants· had committed offence
B
under Sections 109/J 91/193/J 96/200/420/ I20B/34 IPC. As referred to
hereinabove, the Chief Judicial Magistrate, Bhopal, after necessary
hearing as contemplated in law and being prima facie satisfied that
sufficient grounds had been made out to proceed against the appellants
under Sections 191, 193 and 200 !PC, issued process against them.
18. As the documents appended to the appeal would divulge that c
the search operations at Aurangabad had been conducted on the strength
of the warrant of authorisation dated 26. I 0.20 I 0 under Section 132 of
the Act, issued, signed and sealed by the Director oflncome Tax (Inv.),
M.P. & C.G,Bhopal/Deputy Director ofincome Tax and the statements
of the appellant Nos. 1 and 2 were recorded by Mrs. Bharati Choudhary, D
I.T.O. and Mr. A.T. Kapase, l.T.0. (Inv.), Nashik on 28.10.2010. The
materials on record also disclose that search operations did continue on
subsequent dates as well, in course whereof seizures were made.
19. Be that as it may, eventually the office of the Deputy Director
oflncome Tax (Investigation)-!, Bhopal on 8.2.2011 issued a show cause E
notice to the appellants under Section 277 of the Act alleging that they
had made false statement under Section 132(4) thereof, thereby seeking
a reply as to why prosecution would not follow by virtue thereof. It is in
this factual premise, that the validity of the complaint filed by the Deputy
Director, Income Tax (Investigation)-!, Bhopal, (M.P). has been
questioned by the appellants. To reiterate, by the impugned order, the F
High Court has negated both the demurrals of the appellants pertaining
to the complaint and territorial jurisdiction of the court of the Chief Judicial
Magistrate, Bhopal.
20. The state of law as adumbrated by the precedents cited may
now be outlined before referring to the relevant provisions involved. G
21. In il;;!dip Singh (supra), the question involved before a
Constitution Bench of this Court was about the validity ofa complaint
made under Section 476-A read with Section 195(3) of the Code of
Criminal Procedure Code 1898 against the appellant for perjury and for
H
618 SUPREME COURT REPORTS [2016) 7 S.C.R.
A using a forged document as genuine. The contextual facts narrate that
the 2"d respondent therein had filed a suit against the appellant for recovery
of money on the basis of a mortgage in the Court of one Mr. E.F. Barlow,
Subordinate Judge of I st Class. The appellant in the suit filed a receipt
which purported to show that Rs.35000/- had been paid towards the
satisfaction of the mortgage and in the witness box he swore that he had
B
paid the money for which the receipt was given.
22. Mr. Barlow held that the receipt did not appear to be a genuine
document and that the evidence of the appellant to that effect was not
true. A preliminary decree was accordingly passed against the appellant
for the entire amount followed by a final decree. The appeal preferred
c by the appellant was also dismissed by the High Court which reiterated
that the receipt was a very suspicious document and that the appellant's
evidence was not reliable as well.
23. The plaintiff/respondent thereafter made an application in the
Court of Mr. W. Augustine who had succeeded Mr. Barlow as
D Subordinate Judge of 1" Class stating that a complaint be filed against
the appellant under Sections 193 and 471 l.P.C. Mr. Augustine, because
of his transfer could not hear the application for filing of the complaint.
In his place Mr. K.K. Gujral, subordinate Judge of the 4'h Class was
sent. He, however, declined to entertain the matter as he was only a
E subordinate judge of the 4'h Class and laid a report to the District Judge
pointing out his lack of jurisdiction in the matter as the offences had
been allegedly committed in the Court of a subordinate Judge of the I"
Class. The District Judge thereupon transferred the matter to the Senior
Subordinate Judge, Mr. Pitam Singh who made the complaint. The
impeachment of the validity of the complaint has arisen in this backdrop.
F
24. As the sequence of events unfold, the appellant filed an appeal
against the orderofMr. Pitam Singh to the Additional District Judge Mr,
J .N. Kapur who held thatthe Senior Subordinate Judge Mr. Pitam Singh
had no jurisdiction to make complaint. He also held that on merits as
well there was no prima facie case. The High Court, however, in revision
G held that the Senior Subordinate Judge had the jurisdiction and further
the materials on record did disclose a prima facie case. Accordingly, the
order of the Additional District Judge was set aside and the order of the
Senior Subordinate Judge was restored.
25. Three questions fell before this Court for scrutiny. Firstly,
H
BABITA LILA & ANOTHER v. UNION OF INDIA 619
[AMITAVA ROY, J.]
whether the Senior Subordinate Judge Mr. Pitam Singh had jurisdiction A
to entertain the application and make a complaint Secondly, whether
the Additional District Judge had jurisdiction to entertain an appeal
preferred against the order of Mr. Pitam Singh and thirdly, whether the
High Court had the power to reverse the order of the Additional District
Judge in revision. ··'
B
26. While dwelling upon the firsfissue, this Court adverted at the
threshold to Section 195(1)(b) and (c) of the Code which prohibited
any Court from taking cognizance of either of the two offences alleged,
except on the complaint in writing of the Court concerned or of some
other Court to which such Court was subordinate: Having regard to the
fact that the offences were committed in the Court of E.F. Barlow,
c
Subordinat-: Judge of the I st Class, their Lordships next referred to
Section 476-A of the Code which prescribed that when the Court in
which the offence is said to have been committed neither makes a
complaint nor rejects an application for the making of a complaint, the
Court to which such former Court is subordinate within the meaning of D
Section 195 (3) may take action under Section 476.
27. Their Lordships noted that Section 4 76 authorised the
appropriate Court, after recording a finding to the effect that it was
expedient to do so in the interest ofjustice to make a complaint in writing
and forward it to a Magistrate of I st Class having jurisdiction. While E
examining in the scheme of prevalent hierarchy of posts as to whether
the comt of Senior Subordinate Judge presided over by Mr. Pitam Singh
was a Court to which tht: Court of Mr. Barlow was subordinate within
the meaning of Section 195(3) of the Code, their Lordships marked that
in terms of Section 195(3), a Court for the purposes thereof, would be
deemed to be subordinate to the Court to which appeals ordinarily lay F
from the appealable decrees or sentences of such former Court, or in
the case of a Civil Court from whose decrees no appeal ordinarily lay, to
the principal court having ordinary original civil jurisdiction within the
local limits of whose jurisdiction such Civil Court was situated. The
proviso to Section 195(3) was also noted which ordained that where G
appeals lie tu "lore than one court, the appellate court of the inferior
jurisdiction would be the court to which such court would be deemed to
be subordinate. Further when appeals lay to a Civil and also to a Revenue
Court, such Courts would be deemed to be subordinate to the Civil or
Revenue Court, according to the nature of the case or the proceedings
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620 SUPREME COURT REPORTS [2016] 7 S.C.R.
A in connection with which the offence was alleged to have been committed.
28. In this conspectus, this Court laid a decisive emphasis on the
word "ordinarily" and to disinter the legislative intent, alluded to the
relevant provisions of the Punjab Courts Act, 1918 dealing in particular
with the classes and hierarchy of Civil Courts. Apart from the Courts of
B Small Causes, it was noticed that under the said Act following three
classes of Civil Courts were provided:
(i) The Court of District Judge
(ii) The Court of Additional Judge
c (iii) The Court of the Subordinate Judge
29. Vis-a-vis the provisions for appeal under Section 39 of the
Act, it was noted that in the absence of any other enactment for the
time being in force, appeals lay to the Court of the District Judge when
the value of the suit did not exceed Rs.5,000/- and in every other case to
the High Court. Section 39(3 ), however, empowered the High Court by
D
notification to direct that appeals lying to the District Court from all or
any of the decrees or orders passed in its original jurisdiction by a
Subordinate Judge, would be preferred to such other Subordinate Judge
as mentioned in such notification. The facts revealed that as a matter
of fact such power had been invoked and appeals lying to the District
E Courts from the decrees or orders passed by a Subordinate Judge in two
classes of cases as specified could be preferred before the Senior
Subordinate Judge of the 1~ Class exercising jurisdiction within such
Civil District.
30. In this factual setting their Lordships expounded that filing of
F the appeal to the Senior Subordinate Judge as notified qua the two
selected categories of cases, could not be termed as "ordinary" because
the special appellate jurisdiction had been conferred by the notification,
by way of an additional assignment so much so that the power pertaining
thereto could be exercised in a certain limited categories of cases. It
was not an ordinary appellate jurisdiction of the Senior Subordinate Judge
G
and for that matter for all Senior Subordinate Judges generally, it could
not be said that appeals from the Courts of Subordinate Judges ordinarily
lay to that of a Senior Subordinate Judge.
. 31. Their Lordships thus concluded that in the paradigm of the
Civil Courts as codified by the Punjab Court's Act, 1918, appeals ordinarily
H
BABITA ULA & ANOTHER v. UNION OF INDIA 621
[AMITAVA ROY, J.]
lay either to the District Court or to the High Court and as the District A
Court was of the lower tier of these two forums, it was to be regarded
as the appellate authority forthe purposes of Section 476 8 of the Code .
. With reference to Proviso (b)to Section 195(3) of the Code, it was held
that where in the facts of the case, appeals would lie to a Civil as well as
Revenue Court, the nature of the case or proceeding would determine
B
the court to which appeal would lie and that to that limited extent the
nature of the proceeding ought to be taken into account, but once the
genus of the proceeding is determined namely, Civil, Criminal or Revenue,
the hierarchy of the superior Courts would be determined first by the
rules that apply in their special cases, if any and next by the rule in
Section 195(3). c
32. While dealing with the aspect as to whether the Court of the
senior Subordinate Judge was the Court to which the Court of Subordinate
Judge of the 1" Class was Subordinate or both the courts were at par,
their Lordships confined the adjudication to the provisions of the Punjab
Court's Act, Section ( 18) whereof did authorise the State Government D
to fix the number of subordinate judges to be appointed. Section 27
which vested the power in the High Court to post a subordinate judge
and also prescribe the limits of his/her jurisdiction was also referred
to. Their Lordships noted in terms of the Notification dated 03.01.1923
that four classes of Subordinate Judges had been contemplated based
on the pecuniary jurisdiction conferred. E
33. In the above factual as well as legal premise it was thus
propounded that the Senior Subordinate Judge Pitam Singh had no
jurisdiction to lodge the complaint and instead it was the District Judge
who was competent to do so, being the Court to which appeals ordinarily
lay from the court of the subordinate judge and was lower in rank to the F
High Court in the hierarchy. It was held in this context, that the Court of
the Additional District Judge could not be construed to be a District
Judge and that the jurisdiction of the former was Iimited to the discharge
of such functions as were to be entrusted by the District Judge. It was
thus concluded that neither the Senior Subordinate Judge Mr. Pitam Singh G
nor the Additional Judge Mr. J.N. Kapur who construed himself as an
Additional District Judge, had the jurisdiction in the matter and in view
of the provisions of the Punjab Courts Act, it was the District Judge who
was competent to lodge the complaint in terms of Section 195(3) of the
Code. Having regard to the gravity of the allegations, this Court remitted
H
622 SUPREME COURT REPORTS [2016] 7 S.C.R.
A the matter to the District Court to do the needful in the exercise of his
discretion in the facts and circumstances of the case.
34. In Lalji Haridas (supra), a Constitution Bench of this Court
was seized with the question as to whether the proceeding before the
I. T.O. under Section 37 of the Indian Income Tax Act, I 922 (as it was
B then) could be construed to be a proceeding in any court within the
meaning of Section 195(1 )(b) of the Code. The factual backdrop as
outlined discloses that the appellant and the respondent No. 2 therein
were businessmen and used to carry on their business at two different
places and were known to each other for several years. In the income
tax assessment proceedings of the appellant for the assessment years
c 1949-50 and 1950-51, the respondent No. 2 adduced evidence on oath
before the I.T.O. of the concerned ward, wherein he denied that he had
a son named Nihal Chand and that he had done any business in the
name ofM/s. Nihal Chand & Co. at Jamnagar. The appellant alleged
that the said statement was false to the knowledge of the respondent
D No. 2 and was made to mislead the enquiring I.T.O. and to avoid the
incidence of income tax on himself and consequently the appellant was
heavily taxed.
35. The appellant thereafter filed a criminal complaint against
respondent No. 2 under Section 193 IPC. At the hearing of the complaint,
E the respondent No. 2 raised a preliminary objection that the learned
Magistrate before whom the complaint had been filed, could not have
taken cognizance thereof as the allegation was making of a false
statement by him on oath in a proceeding before the court within the
meaning of Section 195(1)(b) of the Code and in such an eventuality,
the complaint was to be filed by the court concerned as required under
F the said provision of the Code and thus the appellant was not competent
to lodge the prosecution.
36. Though the. learned Magistrate held that the l.T.O. was not a
court within the meaning of Section 195(1Xb) of the Code, the High
Court, on a revision being filed by the respondent No. 2, sustained his
G challenge to the maintainability of the complaint. The High Court held
thatthe l.T.O. was a court within the meaning of Section 195(l)(b) of
the Code and resultantly dismissed the complaint filed by the appellant,
who eventually approached this Court.
3 7. Adverting to Section 37 of the Income Tax Act, 1922 and
H
BABITA LILA & ANOTHER v. UNION OF INDIA 623
[AMITAVA ROY, J.]
sub-section (4) thereof in particular, it was held that as apparent A
therefrom, any proceeding before the l.T.O. in which powers under
sub-sections (I), (2) and (3) are exercised by him, would be judicial
proceeding for the purposes of the three sections of the Indian Penal
Code as enumerated in sub-section (4). Consequently, the question as
to whether the false statement alleged to have been made by the
B
respondent No. 2 was rendered in a judicial proceeding within the meaning
of Section 193 IPC was answered in the affirmative.
38. This Court also dwelt upon the aspect whether ''.judicial
proceeding" as referred to in Section 193 !PC was synonymous with
the expression "any proceeding in any court" used in Section 195( I )(b)
of the Code. This issue surfaced primarily in view of the two classes of c
proceedings contemplated in Section 193 !PC attracting two varying
punishments. This provision, it was noted, envisaged a punishable offence
for giving false evidence in any stage ofajudicial proceeding or fabricating
false evidence for the purpose of being used in any stage of a 'judicial
proceeding' and also for giving or fabricating false evidence in 'any D
other' case. This Court in the ultimate analysis propounded on a conjoint
reading of Section 193 IPC and Section I 95(1)(b) of the Code that the
proceedings which are judicial under the former ought to be taken to be
proceedings in any court under the latter. In this context, it was ruled
that having regard to the higher sentence for the offence under Section
I 93 IPC qua a judicial proceeding compared to 'any other case; the E
legislature thus had intended that there ought to be a safeguard in respect
of complaints pertaining to the offence relatable to judicial proceedings
as engrafted in Section 195( 1)(b) of the Code. It was observed that an
offence which was treated as more serious by the first paragraph of
Section 193 IPC, being one committed during the course of a judicial F
proceeding, should be held to be an offence committed in a proceeding
in any court for the propose of Section 195( I )(b) of the Code. In terms
of the majority decision that was rendered, the view taken by the High
Court was sustained and the complaint was dismissed as not filed in
compliance of the statutory prescriptions contained in Section 195( l)(b)
of the Code. G
39. Noticeably in course of the adjudication, it was marked that
Section 195 was an exception to an ordinary rule that any person could
make a complaint in respect of commission of an offence triable under
the Code. The restrictive mandate of this provision of the Code against
H
624 SUPREME COURT REPORTS (2016] 7 S.C.R.
A cognizance of any offence punishable under the sections mentioned
therein, when those pertain to any proceedings in any court, except on
the compliant in writing of such court or of some other court to which
such court is subordinate, was underlined in particular.. This Court, thus
emphasised that in the matter of invocation of Section 195( I )(b) of the
Code, vis-a-vis a complaint about any of the offences as mentioned
B
therein, an exception to the ordinary rule of making complaint by any
person has been carved out and by way of a safeguard, only the court in
the proceeding before which such offence had been committed or such
officer of the Court as it may authorise in writing or some other court to
which to this Court is subordinate, has been legislatively identified as
c competent to do so.
40. The decision in R"jes/1 Kum"r(supra) pertains to the decision
of the authorities under the Act to conduct a special audit of the account
of the petitioner- assessee in terms of Section 142(2-A) of the Act. This
was subsequent to a raid conducted in the premises of the assessee in
D course whereof some documents including its books of accounts had
been seized. The assessee questioned this decision of appointment of a
special auditor principally on the ground of want of fairness in action as
no opportunity of hearing was given to it, prior thereto. The interpretation
and application of Section 142(2-A) of the Act in the textual facts thus
fell for consideration in this case. It is in this context that this Court
E ruled that an assessment proceeding under the Act, is in terms of Section
136 thereof, a judicial proceeding and that when a statutory power is
exercised by the assessing authority in exercise ofjudicial function which
is detrimental to the assessee, the same is not and cannot be administrative
in nature. In the extant facts and circumstances the challenge of the
F assessee was upheld.
41. As the genesis of the debate is rooted to Section 195 of the
Code, a detailed reference thereto is indispensable. For convenience,
Section 195 as a whole is extracted hereinbelow:
"195. Prosecution for contempt oflawful authority of pub Iic
G servants, for offences against public justice and for offences
relating to documents given in evidence.
ill No Court shall take cognizance-
UU (i) of any offence punishable under sections 172 to 188 (both
inclusive) of the Indian Penal Code (45 of\ 860), or
H
c
BABITA LILA & ANOTHER v. UNION OF INDIA 625
(AMITAVA ROY, J.]
(ill of any abetment of, or attempt to commit, such offence, or A
(iii) of any criminal conspiracy to commit such offence, except
on the complaint in writing of the public servant concerned or
of some other public servant to whom he is
administratively subordinate;
(Ql (i) of any offence punishable under any of the following B
sections of the Indian Penal Code (45of1860), n a m e I y ,
sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both
inclusive) and 228, when such offence is alleged to have been
committed in, or in relation to, any proceeding in any Court, or
(ill of any offence described in section 463, or punishable under c
section 471, section 475 or section 476, of the said Code, when
such offence is alleged to have been committed in respect of a
document produced or given in evidence in a proceeding in any
Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, D
or the abetment of, any offence specified in sub- clause (i) or
sub- clause (ii),
[except on the complaint in writing of that Court or by such
officer of the Court as that Court may authorise in writing in
this behalf, or of some other Court to which that Court is E
subordinate].
ill Where a complaint has been made by a public servant
under clause (a) of sub- section (I) any authority to which
he is administratively subordinate may order the withdrawal
of the complaint and send a copy of such order to the Court; F
and upon its receipt by the Court, no further proceedings
shall be taken on the complaint: Provided that no such
withdrawal shall be ordered if the trial in the Court of first
instance has been concluded.
ill In clause (b) of sub- section (1), the term" Court" means G
a Civil, Revenue or Criminal Court, and includes a tribunal
constituted by or under a Central, Provincial or State Act if
declared by that Act to be a Court for the purposes of this
section.
ill For the purposes of clause (b) of sub- section (I), a H
626 SUPREME COURT REPORTS [2016] 7 S.C.R.
A Court shall be deemed to be subordinate to the Court to
which appeals ordinarily lie from the appealable decrees or
sentences of such former Court, or in the case of a Civil
Court from whose decrees no appeal ordinarily lies, to the
principal Court having ordinary original civil jurisdiction
within whose local jurisdiction such Civil Court in situate:
B
Provided that-
{fil where appeals lie to more than one Court, the Appellate Court
of inferior jurisdiction shall be the Court to which such Court
shall be deemed to be subordinate;
c {!ll where appeals lie to a Civil and also to a Revenue Court, such
Court shall be deemed to be subordinate to the Civil or
Revenue Court according to the nature of the case or
proceeding in connection with which the offence is alleged to
have been committed."
D Section 195(1)(b) of the Code, which is relevant for the instant
pursuit, prohibits taking of cognizance by a court vis-a-vis the offences
mentioned in the three clauses (i), (ii) and (iii) except on a complaint in
writing of the Court when the offence(s) is/are alleged to have been
committed in or in relation to any proceeding before it or in respect of
E a document produced .or given in evidence in such a proceeding or by
such officer of that court as it may authorise in writing or by some other
court to which the court (in the proceedings before which the offence{s)
has been committed) is subordinate. A patently regulatory imposition in
the matter of lodging of a complaint for such offences is discernible
assuredly to obviate frivolous and wanton complaints by all and sundry.
F
42. Sub-section (3) of Section 195 clarifies that the term "Court"
would mean a Civil, Revenue or Criminal court and would include a
·tribunal constituted by or under a Central, Provincial or State Act, if
declared by that Act to be a Court for the purposes of this section.
43. In terms of sub-section (4), for the purposes of sub-section
G
(I )(b}, a Court shall be deemed to be subordinate to the Court to which
appeals ordinarily lie from the appealable decrees or sentences of such
former Court, or in the case of a Civil Court from whose decrees no
appeal ordinarily lies, to the principal Court having ordinary original civil
jurisdiction within whose local jurisdiction, such Civil Court is situated.
H
BABITA LILA & ANOTHER v. UNION OF INDIA 627
[AMITAVA ROY, J.]
44. The proviso to sub-section (4) explains that where appeals lie A
to more than one Court, the Appellate Court of the inferior jurisdiction
shall be the Court to which such Court (in the proceedings before which
the offence has been committed) shall be deemed to be subordinate and
where appeals lie to a Civil and also to a Revenue Court, the subordination
would be determined by the nature of the case or the proceeding, in
B
connection with which the offence is alleged to have been committed.
45. Noticeably Section 195 of the Code appears under Chapter
XIV enumerating the conditions requisite for initiation of proceedings
thereunder. Though Section 190 of the Code outlines the categories of
inputs on which a Magistrate of the first class, and any Magistrate of the
second class specially empowered, can take cognizance of the offence c
alleged, Section 195 dealing with the prosecution for contempt oflawful
authority of public servant and for offences against public justice or
relating to documents given in evidence, unmistakably marks a departure
from the usual modes of taking cognizance under Section 190 by
prescribing the restrictions as adverted to hereinabove. D
46. That the provisions of Section 195 of the Code are mandatory
so much so that non-compliance thereof would vitiate the prosecution
and all consequential orders, has been ruled by this Court, amongst others
in C. Muniappan and Otlters vs. State of Tamil Nadu (2010) 9 SCC
567 wherein the following observations in Sacltida Nand Sin1:l1 and E
Anotlter vs. State of Bi/tar and Anotlter ( 1998) 2 SCC 493 were
recorded with approval.
"7 ..... Section 190 of the Code empowers 'any Magistrate
of the First Class' to take _cognizance of 'any offence' upon
receiving a complaint, or police report or information or F
upon his own knowledge. Section 195 restricts such general
powers of the Magistrate, and the general right of a person
to move the court with a complaint is to that extent
curtained. It is a well-recognised canon of interpretation
that provision curbing the general jurisdiction of the
court must normally receive strict interpretation unless G
the statute or the context requires otherwise .....". (emphasis
supplied).
47. There is thus no escape from the proposition that for a valid
complaint under Section 195 of the Code, the mandate thereof has to be
H
628 SUPREME COURT REPORTS [2016] 7 S.C.R.
A essentially abided and as is easily perceivable this is to prevent frivolous,
speculative and unscrupulous allegations relating to judicial proceedings
in any court, lest the process oflaw is abused and public time is wasted
in avoidable litigation.
48. That the search operations did constitute a proceeding under
B the Act before an income tax authority and that therefore the same is
deemed to be a judicial proceeding within the meaning inter alia of Sections
193 and 196 lPC and that every income tax authority for the said purpose
would be deemed to be a civil court for the purposes of Section 195 is
not an issue between the parties.
c 49. The essence of the discord is the competence of the Deputy
Director, Income Tax (Investigation)-!, Bhopal (M.P.) to lodge the
complaint. Whereas, according to the appellants, he is not the authority
or the forum before which appeals would ordinarily lie from the actions/
decisions of the LT.Os. who had recorded their statements, as mandated
by Section 194(4) of the Code, it is urged on behalf of the respondent
D that having regard to the overall scheme of the Act, he indeed was
possessed of the appellate jurisdiction to maintain the complaint. As
nothing much turns on the ingredients of the offences under Sections
193, 196,200 !PC qua the issue to be addressed, detailed reference thereto
is considered inessential. The relevant provisions of the Act next demand
E attention.
50. As enumerated under Section 116 of Chapter XIII of the Act,
Deputy Director of Income tax/Deputy Commissioner of Income Tax/
Deputy Commissioner of Income Tax (Appeals) amongst others are
the designated income tax authorities. Section 118 authorises the Central
F Board of Direct Taxes constituted under the Central Board of Revenue
Act, 1963 (hereinafter referred to as "the Board") to direct by notification
in the official gazette that any income tax authority or authorities specified
therein would be subordinate to such other income tax authority or
authorities as may be specified in such notification. In course of the
arguments, such a notification as contemplated has been laid before this
G Court and attention has been drawn to clause (e) thereof in the following
terms:
"Income-tax Officers shall be subordinate to the Assistant Directors or
. Assistant Commissioners within whose jurisdiction they perform their
functions or other income-tax authority under whom they are appointed
H
BABITA LILA & ANOTHER v. UNION OF INDIA 629
[AMITAVA ROY, J.]
to work and to any other income tax authority to whom the Assistant A
Director or the Assistant Commissioner, as the case may be, or other
income tax authority is subordinate."
51. As would be evident from the above extract, it deals exclusively
with the inter se subordination of the authorities mentioned therein so
much so that Income Tax Officers have been made subordinate to B
Assistant Directors or Assistant Commissioners within whose jurisdiction
they perform their functions or other income tax authorities under whom
they are appointed to work and to any other income tax authority to
whom the Assistant Director or the Assistant Commissioner as the case
may be or other income tax authority is subordinate. Noticeably this
clause does not spell out any territorial barriers but logically warrant
c
some order/notification to activate the functional mechanism in order to
address the institutional exigencies.
52. Our attention has not been drawn to any document to this
effect. Additionally as well, the decisive and peremptory prescription
of Section 195(4) of the Code is not merely the levels of the rank inter se D
but the recognised appellate jurisdiction ordinarily exercised by the
authority or the forum concerned for a complaint to be validly lodged by
it, if in a given fact situation, the initiation of prosecution is sought to be
occasioned not by the court in the proceedings before which the
contemplated offence(s) had been committed, but by a court to which E
ordinarily appeals therefrom would lie.
53. Considerable emphasis has been laid on behalf of the
respondent on the provisions of the Act outlining the jurisdiction of the
income tax authorities as encompassed in Sections 120 and 124 of the
Act in particular. Section I 20 provides that income tax authorities would F
exercise all or any of the powers and perform all or any of the functions
conferred on or as the case may be assigned to such authorities under
the Act in accordance with such directions as the Board may issue in
this regard. The factors to be taken note of by the Board or any other
income tax authority authorised by it for such purposes have also been
prescribed. As a necessary corollary, the Board can also by general or G
special order and subject to such conditions, restrictions or limitations as
may be specified therein, authorise such authorities as enumerated in
sub-section ( 4) thereof to perform such functions, as may be assigned.
54. The powers of an assessing officer vested with the jurisdiction
H
630 SUPREME COURT REPORTS [2016] 7 S.C.R.
A as permitted by Section 120 of the Act, extends as is clarified by Section
124, to any person carrying on business or profession, if the place at
which he carries on his business or profession is situated within the
limits of the area over which such officer had been vested with the
jurisdiction or ifthe person concerned carries on business in more places
than one, if the principal place of his business or profession is situated
B
within the area over which the assessing officer has jurisdiction. In
addition, such officer would have also jurisdiction in respect of any other
person residing within the area. Sub-section 3 of Section 124 debars a
person to call in question the jurisdiction of an assessing officer in the
eventualities as mentioned in sub-clauses (a) and (b) thereof.
c 55. The power with regard to discovery, production of evidence
etc. and the officer empowered to exercise the same has been dealt
with in details in Section 131 of the Act. The procedure to be complied
with in conducting search and seizure has been delineated in Section
132 of the Act. Seemingly, to this extent, the parties are one and ad
D idem.
56. The bone of contention lies in the interpretation of Section 246
of the Act in particular which is contained in Chapter XX dealing with
Appeals and Revision. Whereas Section 246 catalogues the orders of
an assessing officer other than those of the Deputy Commissioner from
which appeal would lie to the Deputy Commissioner (Appeals), Section
E
246A lists the orders from which appeal would lie to the Commissioner
(Appeals). Admittedly, the categories of orders specified under Section
246( I) of the Act do not include one stemming from any proceeding
before an assessing officer under Section 132 of the Act pertaining to
search or seizure. Noticeably though under Section 116 of the Act, as
F referred to hereinabove, under clause (d) thereof, Deputy Director of
Income Tax, Deputy Commissioner of Income Tax and Deputy
Commissioner of Income Tax (Appeals) have been bracketed together,
it is only the Deputy Commissioner (Appeals), as is apparent from Section
246( 1), who has been conferred with the appellate jurisdiction to entertain
appeals, albeit from specified orders passed by an assessing officer as
G mentioned in that sub-section. The Deputy Director oflncome Tax in
particular, has not been designated to be the appellate authority or forum
from such orders or any other order of the assessing officer. Having
regard to the issue to be addressed, it is considered inessential to dilate
on Section 246A which deals with the appeals to the Commissioner
H (Appeals).
BABITA LILA & ANOTHER v. UNION OF INDIA 631
[AMITAVA ROY, J.]
57. Our attention has not been drawn to any provision of the Act A
whereunder the Deputy Director of Income Tax has been designated
to be an authority or forum before whom an appeal would lie from any
orderofany subordinate officer including the l.T.O.. To reiterate, LT.Os.
are included in the classes of income tax authorities as per Section 116
of the Act a:id having regard to the hierarchy designed, they are
B
subordinate in rank to the Deputy Director of Income Tax, Deputy
Commissioner oflncome Tax and the Deputy Commissioner oflncome
Tax (Appeals).
58. On a conjoint reading of the above provisions of the Act, it is
thus patent that the statute has not only identified the income tax
authorities but also has specified their duties and jurisdiction, territorial c
and otherwise. It has stipulated as well the eventualities and the pre-
requisites, for the exercise of such jurisdiction or performance of the
duties assigned to ensure effective and purposeful implementation of
the provisions thereof. These functional framework indubitably has been
made for the desired conduct of the organisational affairs as legislatively D
intended.
59. The word "ordinary" as defined in Blacks Law Dictionary,
J (J'h E<litio11, reads thus:
"Ordinary: occurring in regular course of events; normal; usual.
E
The word "ordinarily" is a derivative of this word (adverb) carrying
the sarne meaning.
60. The word "ordinarily" therefore would denote developments
which are likely to occur, exist or ensue in the regular or normal course
of events as logically and rationally anticipated even though not set out F
or expressed in categorical terms. This is a compendious expression to
encompass all events reasonably expected to occur in the usual and
common course of occurrenc.es and are expected to so happen unless
prohibited, prevented or directed by some express and unexpected
interventions to the contrary.
G
61. As adverted to hereinabove, Section 195 of the Code read as
a whole unambiguously impose restrictions in the matter of lodgement
of complaint quathe offences as mentioned in sub-section (I )(b) thereof
in particular and therefore as a corollary, any interpretation for identifying
the court/authority/forum contemplated thereby to be competent has to
H
632 SUPREME COURT REPORTS [2016] 7 S.C.R.
A be in furtherance of the restraint and not in casual relaxation thereof.
Consequently, therefore the exposition of the provisions of the
corresponding substantive law which designs the forums or authorities
and confers original and appellant jurisdiction has also to be in aid of the
underlying objectives of the restrictions stipulated. Any postulation
incompatible with the restrictive connotations would be of mutilative
B
bearing thereon and thus frustrate the purpose thereof, a consequence
not approvable in law. To reiterate, Section 195 of the Code. clearly
carves out an exception to the otherwise conferred jurisdiction on a
court under Section 190 to take cognizance of an offence on the basis of
the complaints/information from the sources as enumerated therein.
c 62. Viewed in this context, in our estimate, the notification issued
under Section 118 of the Act cannot be conceded an overriding effect
over the scheme of the statute designating the appellate forums more
particularly in absence of any order, circular, notification of any authority
thereunder to that effect. The Deputy Director of Income Tax for that
D matter, as the framework of the Act would reveal, has not been
acknowledged to be the appellate forum from any order or the decision
of the assessing officer/1.T.O., notwithstanding several other provisions
with regard to conferment of various powers and assignments of duties
on the said office. In the teeth of such mindful and unequivocal module
of the Act, recognition of the Deputy Director of Income Tax to be a
E forum to whom an appeal would ordinarily lie from any decision or
action of the assessing officer/income tax officer would not only be
inferential but would also amount to unwarranted judicial legislation by
extrinsic additions and doing violence to the language of the law framed.
On the contrary, acceptance of the Deputy Commissioner (Appeals) as
F the forum to which an appeal would ordinarily lie from an order/decision
of the assessing officer/1.T.O., would neither be inconsistent with nor
repugnant to any other provision of the Act and certainly not incompatible
with the legislative scheme thereof. Mere silence in Section 246 of the
Act about any decision or order other than those enumerated in sub-
section (I) thereof as appealable /decision to the Deputy Commissioner
G (Appeals), does not ipso fact spell legislative prohibition in that regard
and in our comprehension instead signifies an affinnative dispensation.
63. It is a trite law that there is no presumption that a casus
omissus exists and a court should avoid creating a casus omissus where
there is none. It is a fundamental rule of interpretation that courts
H
BABITA LILA & ANOTHER v. UNION OF INDIA 633
[AMITAVA ROY, J.]
would not feel the gaps in statute, their functions being ;us discre 11011 A
facere i.e. to declare or decide the law. In reiteration of this well-settled
exposition; this Court in (2008) 306 ITR 277 (SC) Union ofIndia and
otlters vs. D/1armendar Textile Processors and otlters had ruled
that it is a well settled principle in law that a court cannot read anything
in the statu~ory provision or a stipulated provision which is plain and
B
unambiguous. It was held that a statute being in edict of the Legislature,
the language employed therein is determinative of the legislative intent.
It recorded with approval the observation in Stock v. Frank Joltns
(Tipton) Vmited (1978) I All ER 948 (HL) that it is contrary to all
rules of construction to read words into an Act unless it is absolutely
necessary to do so. The observation therein that, rules of interpretation c
do not permit the courts to do so unless the provision as it stands
meaningless or doubtful and that the courts are not entitled to read words
into an Act of Parliament unless clear reason for it is to be found within
the four corners of the statute, was underlined. It was proclaimed that
a casus omissus cannot be supplied by the court except in the case of
D
clear necessity and that reason for is found in the four corners of the
statute itself but at the same time a casus omissus should not be readily
inferred and for that purpose, all the parts of a statute or section must be
construed together and every clause of a section should be construed
with reference to the context and other clauses thereof so that the
construction to be put on a particular provision makes a consistent E
enactment of the whole statute.
64. More recently this Court amongst others in Petroleum and
Natural Gas Regulatory Board vs. Indraprastlta Gas Limited and
Otlters (2015) 9 SCC 209 had propounded that when the legislative
intention is absolutely clear and simple and any omission inter alia either F
in conferment of power or in the ambit or expanse of any expression
used is deliberate and not accidental, filling up of the lacuna as perceived
by a judicial interpretative process is impermissible. This was in reiteration
of the proposition in Sree Balaji Nllgllr Resi<lential Association vs.
State of Tamil Nadu and Otlters (2015) 3 SCC 353 to the effect that
casus omissus cannot be supplied by the court in situations where G
omissions o~herwise noticed in a statute or in a provision thereof had
been a conscious legislative intendment.
65. The judicial formulations on the theme is so consistent and
absolute in tem1s that no further dilation is essential. The scheme of the
H
634 SUPREME COURT REPORTS [2016] 7 S.C.R.
A Act and the legislative design being unreservedly patent in the instant
case, that it is plainly impermissible to acknowledge the Deputy Director
oflncome Tax to be the forum to which an appeal would ordinarily lie
from an order/decision of an assessing officer/l.T.O. The present is
thus not a case where this Court can premise that the statute suffers
from casus omissus so as to ·recognise the Deputy Director of Income
B
Tax as such an appellate forum.
66. In this persuasive backdrop, the conferment of appellate
jurisdiction on the Deputy Commissioner of Appeals from the orders/
decisions of the assessing officers as is apparent from Section 246 of
the Act, has to be construed as a conscious statutory mandate. This is
c more so as noticed hereinabove, the Deputy Director of Income Tax,
Deputy Commissioner oflncome Tax and the Deputy Commissioner of
Income Tax (Appeals) have been otherwise placed at par in the list of
income tax authorities provided by Section 116 of the Act. The omission
to either vest the Deputy Director of Income Tax with the appellate
D powers or to contemplate the said post to be an appellate forum from
the orders/decisions of the assessing officers cannot thus be accidental
or unintended. The relevant provisions of the Act pertaining to the powers,
duties and jurisdiction of the various income tax authorities do not leave
any room for doubt, in our estimate, to conclude otherwise. True it is,
that the Deputy Commissioner of Appeals has been construed in terms
E
of Section 246 of the Act to be an appellate forum from the orders as
enumerated in sub-section (I) thereof, but in absence of any provision
in the statute nominating the Deputy Director of Income Tax to be an
appellate forum for any order/decision of the assessing officer/1.T.O.,
the inevitable conclusion is that the said authority i.e. Deputy Director of ·
F Income Tax cannot be construed to be one before whom an appeal from
any order/decision of any income tax authority, lower in rank would
ordinarily lie.
67. The Parliament has unmistakably designated the Deputy
Commissioner (Appeals) to be the appellate forum from the orders as
G enumerated under Section 246( 1) of the Act. This however, in our view,
as observed hereinabove does not detract from the recognition of this
authority to be the appellate forum before whom appeals from the
decisions of an assessing officer or of an officer of the same rank
thereto would generally and ordinarily lie even in the contingencies not
referred to in particular in sub section 1 of Section 246. This is more so,
H
BABITA LILA &, ANOTHER v. UNION OF INDIA 635
[AMITAVAROY, J.]
to reiterate, in absence of any provision under the Act envisaging the
Deputy Director oflncome Tax to be an appellate forum in any eventuality
beyond those contemplated in Section 246(1) of the Ac_t,_ Neither the
hierarchy of ~e income tax au~orities as listed in Section 116 of the Act
nor in the notification issued under Sec~ion 118 thereof, nor their duties,
functions, jurisdictions as prescribed by the cognate provisions alluded
B
heretobefore, permit a deduction that in the scheme of the legislation,
the Deputy Director of Income Tax has been ~onceived also to be an
appellate forum to which appeals from the orders/decisions of the l.T.Os./ -.
assessing officers would ordinarily lie within the meaning of Section
195(4) of the Code. The Deputy Director oflncome Tax (Investigation)-
! Bhopal, (M.P.), in our unhesitant opinion, therefore cannot be construed c
to be an authority to whom appeal would ordinarily lie from the decisions/
orders of the LT.Os. involved in the search proceedings in the case in
hand so as to empower him to lodge the complaint in view of the
restrictive preconditions imposed by Section 195 of the Code. The
complaint filed by the Deputy Director oflncome Tax, (Investigation)-!,
D
Bhopal (M.P.), thus on an overall analysis of the facts of the case and
the law involved has to be held as incompetent.
68. The cavil on the competence of the Court-of the Chief Judicial
Magistrate, Bhopal to entertain the complaint and take cognizance of
the offences alleged, though reduced to an academic exercise, in view
of the above determination needs to be dealt with in the passing. E
69. In Y.Abrt1/1amAjith (supra), the issue of territorial jurisdiction
of the Trial Court in which a complaint had been filed by the respondent
No. 2 under Sections 498A and 406 IPC, in the face.of Sections 177
and 178 of the Code surfaced for scrutiny. The defence raised the plea
that as no part of the ca:use of.action constituting the alleged offence F
had arisen within the jurisdiction of the court before which the complaint
had been filed, it lacked competence to entertain the same and conduct
the trial following the submission of the charge-sheet. The complaint
had disclosed that the allegations levelled therein related to the incident
that had happened at her previous place of stay beyond the territorial G
limits of tlte ;:ourt in which it had been filed. This Court after dilating on
the scope and purport of Sections 177 and 178 of the -Code as well as
the judicially exp0unded connotation of the expression "cause of action"
sustained the objection to the maintainability of the complaint. It was
noticed that there was no whisper of any allegation relatable to the
H
636 SUPREME COURT REPORTS [2016] 7 S.C.R.
A offences imputed at the place of stay of the complainant where the
complaint had been filed. It was thus held that no part of cause of action
did arise within the jurisdiction of the Trial Court before which the
complaint had been filed and the proceedings resultantly were quashed.
70. A similar fact situation obtained in B/1ura Ram (supra) also
B involving offences under Sections 498A/406/l 4 7 IPC. In the attendant
facts, it being apparent that no part of the cause ofaction for the alleged
offence had arisen or no part of the offence had been committed within
the jurisdiction of the court before which the complaint had been filed,
the proceedings were quashed.
c 71. Both these decisions on territorial jurisdiction, to start with
having regard to the facts involved herein are distinguishable and are of
no avail to the appellants: As hereinbefore stated, the appellants as
assesses, had residences both at Bhopal and Aurangabad and had been
submitting their income tax returns at Bhopal. The search operations
were conducted simultaneously both at Bhopal and Aurangabad in course
D whereofallegedly the appellants, in spite of queries made, did not disclose
that they in fact did hold a locker located at Aurangabad. They in fact
denied to hold any locker, either individually or jointly. The locker,
eventually located, though at Aurangabad, has a perceptible co-relation
or nexus with the subject matter of assessment and thus the returns filed
E by the appellants at Bhopal which in tum were within the purview of the
search operations. The search conducted simultaneously at Bhopal and
Aurangabad has to be construed as a single composite expedition with a
common mission. Having regard to the overall facts and the accusation
of false statement made about the existence of the locker in such a joint
drill~ it cannot be deduced that in the singular facts and circumstances,
F no part ofthe offence alleged had been committed within the jurisdictional
limits of the Chief Judicial Magistrate, Bhopal.
72. Chapter XIII of the Code sanctions the jurisdiction of the
criminal courts in inquries and trials. Whereas Section 177 of the Code
stipulates the ordinary place ofinquiry and trial, Section 178 enumerates
G the places of inquiry or trial. In terms of Section 179, when an act is an
offence by reason of anything which has been done and of a consequence
which has ensued, the offence may be inquired into or tried by a court
within whose local jurisdiction such thing has been done or such ·
consequence has ensued. For immediate reference, Sections 177 and
H 178 are extracted hereinbelow.
BABITA LILA & ANOTHER v. UNION OF INDIA 637
[AMITAVA ROY, J.]
"177: Ordinary place of inquiry and trial - Every offence A
shall ordinarily be inquired into and tried by a court within
whose local jurisdiction it was committed.
178: Place of inquiry or trial - (a) When it is uncertain in
which of several local areas an offence was committed, or
(b) where an offence is committed partly in one local area B
and partly in another, or
(c) where an offence is continuing one, and continues to
be committed in more local areas than one, or
(d) where it consists of several acts done in different local c
areas, it may be inquired into or tried by a court having
jurisdiction over any of such local areas.
73. As would be evident from hereinabove, ordinarily every offence
ought to be inquired into and tried by a'court within whose local jurisdiction
it had been committed as is mandated by Section 177 of the Code. D
Section 178, however marks a departure contingent on the eventualities
as listed in clauses (a),(b), (c) and (d) of Section 178 to identify the court
that would have the jurisdiction to try the offences as contemplated
therein.
74. Though the concept of "cause of action" identifiable with a
E
civil action is not routinely relevant forthe determination ofterritoriality
of criminal courts as had been ruled by this Court in Das/1rat/1 Rupsing/1
Rathod vs. State of Maharashtra and Another, (2014) 9 SCC 129,
their Lordships however were cognizant of the word "ordinarily" used
in Section 177 of the Code to acknowledge the exceptions contained in
Section 178 thereof. Section 179 also did not elude notice . F
7S. Be that as it may, on a cumulative reading of Sections 177,
178 and 179 of the Code in particular and the inbuilt flexibility discernible
· in the latter two provisions, we are of the comprehension that in the
attendant facts and circumstances of the case where to repeat, a single
and combine search operation had been undertaken simultaneously both G
at Bhopal and Aurangabad for the same purpose, the alleged offence
can be tried by courts otherwise competent at both the aforementioned
places. To confine the jurisdiction within the territorial limits to the
court atAurangabad would amount, in our view, to impermissible and
illogical truncation of the ambit of Sections 178 and 179 of the Code.
H
638 SUPREME COURT REPORTS [2016] 7 S.C.R.
A - The objection with regard to the competence of the Court of the Chief
Judicial Magistrate, Bhopal is hereby rejected.
76. The inevitable consequence of the determination in its entirety
however is that the complaint is unsustainable in law having been tiled
by an authority, incompetent in terms of Section 195 of the Code.
B 77. In the result, the appeal succeeds and the impugned proceeding
and the order assailed are set-aside. The respondent is however left at
· liberty to take appropriate steps in the matter, as available in law, if so
advised.
Devika Gujral Appeal allowed.
c
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