Case Law Details
CBI (Anti-Corruption Branch) Vs Sh. Jose Alexander (Karnataka High Court)
Petitioner was a party to the criminal appeal filed by accused No. 3 before the Supreme Court. In the absence of the copies of pleadings in the said case, it cannot be said that the petitioner did not raise this issue of applicability of Section 120B(1) of IPC in the said criminal appeal. If at all there was any error on the face of the record in the Supreme Court’s judgment passed in favour of accused No.2 for non-consideration of Section 120B(1) of IPC, the remedy of the petitioner was to seek review of the said order. Without doing that, the petitioner cannot be permitted to argue before this Court that the Hon’ble Supreme Court failed to consider the effect of Section 120B(1) of IPC and the judgment of the Hon’ble Supreme Court was per incurium.
Further a co-ordinate bench of this Court in Crl.P.No.5345/2009 quashed the proceedings against accused No.4. Admittedly, the petitioner has not challenged the said order and allowed that order to attain finality. It is not open to the petitioner to contend that the judgment of this Court and of the Hon’ble Supreme Court relating to accused Nos. 3 and 4 could not have been relied by the trial Court in discharging accused No. 2.
The Hon’ble Supreme Court in Issac Mattammel Cor-episcopa’s case referred to supra has held that as per Article 141 of the Constitution of India, law declared by this Court is binding on all Courts and under Article 144 of the Constitution of India, civil and judicial authorities within the territory of India shall act in aid of the Supreme Court.
When the order of the Hon’ble Supreme Court was not sought to be reviewed, the contention that the said judgment was per incurium and that should not have been followed by the trial Court and does not bind the parties runs contrary to judicial discipline.
FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT
“Whether the impugned order of the trial Court discharging the respondent/accused No. 2 for the offences punishable under Section 120B of IPC read with Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 (‘the PC Act’ for short) suffers illegality, infirmity or incorrectness”? is the question involved in this case.
2. The petitioner charge sheeted the respondent, accused Nos.1, 3 and 4 in RC.8(A)/99-CBI/BLR for the offences punishable under Section 120B of IPC read with Sections 13(2) and 13(1)(d) of the PC Act.
3. The case of the prosecution in brief is as follows:
(i) At the relevant time, accused No.1 was working as Commissioner of Income Tax (Appeals)-II, Bengaluru. Thus, he was a public servant. Accused Nos. 2 and 3 were Income Tax Assessees and accused No. 4 was the chartered accountant. Accused No.2 filed Income Tax Returns for the assessment years 1986-1987 to 1989-1990 through accused No.4. CW.2 Sri H.N.Marappa, Deputy Commissioner of Income Taxes (Technical) passed Assessment orders under Section 144 of the Income Tax Act, 1961 directing accused Nos.2 and 3 to pay additional taxes. Accused Nos.2 and 3 challenged those orders in Appeal No.30(a)/CC-III/CIT(A)-II/95-96 and Appeal No. 24(b)/CC-III/CIT(A)-II/95-96. The appeals were actually presented on 09.10.1995. Accused No.1 was going to lose the appellate jurisdiction with effect from 09.10.1995 as per the notification of the Commissioner of Income Tax. Therefore, accused No.1 in collusion with accused Nos.2 to 4 antedated the appeals to 27.04.1995 tampered the appeal register and other records to project that the appeals were filed on 27.04.1995.
(ii) Further accused No.1 without issuing notice to the Assessing Officer-CW.2 and without conducting any hearing allowed tax relief of Rs.1,53,508/- to accused No.2 and Rs.1,60,197/- to accused No.3 in respect of their appeals. Thereby, accused No.1 caused corresponding tax loss to the Income Tax department. Though the appeals were not actually heard, accused No.1 created records to project that the appeals were heard on 22.09.1995 and obtained signatures of the parties on the purported proceedings. Thus, the accused committed the offence of conspiracy and accused No.1 committed misconduct in terms of Sections 13(1)(d) and 13(2) of the PC Act.
4. On filing the charge sheet, the trial Court took cognizance of the offences against the accused and registered the case in Special C.C.No.115/2001. Accused No.3-Johnson Alexander filed Crl.P.No.2216/2009 before this Court under Section 482 of Cr.P.C. seeking quashing of the proceedings. This Court dismissed the said petition. Accused No.3 challenged the said order before the Hon’ble Supreme Court in Criminal Appeal No.1478/2010.
5. The Hon’ble Supreme Court vide judgment dated 26.02.2015 allowed Criminal Appeal No.1478/2010, reversed the order of this Court passed in Crl.P.No.2216/2009 and quashed the proceedings against accused No.3. Similarly, on 09.12.2009, this Court in Crl.P.No.5345/2009 invoking powers under Section 482 of Cr.P.C. quashed the proceedings against accused No.4.
6. After the proceedings against accused Nos.3 and 4 were quashed, the respondent/accused No.2 filed application before the trial Court seeking his discharge. The application was opposed by the prosecution. The trial Court on hearing the parties, by the impugned order discharged accused No.2 and proceeded to frame charge only against accused No.1.
7. The grounds of discharge under the impugned order were as follows:
(i) Since accused No.2 is not a public servant, he is not covered under the PC Act to frame charge under Sections 13(2) and 13(1)(d) of the PC Act.
(ii) On exclusion of the offences under Sections 13(2) and 13(1)(d) of the PC Act, only the offence under Section 120B of IPC remains. The said offence is punishable with imprisonment upto six months. In such event, Section 468 of Cr.P.C. bars the Court from taking cognizance after expiry of one year.
(iii) The offence said to have been committed in 1995. The complainant claims that the offence came to his knowledge on 21.09.1999. But the charge sheet was filed on 21.06.2001 and the cognizance was taken on the same day. Therefore, taking of the cognizance was barred by Sections 468 and 469 of IPC.
(iv) Since proceedings against accused Nos.3 and 4 were quashed by the Hon’ble Supreme Court and the High Court, accused No.2 who is similarly situated is entitled to the benefit of discharge.
8. Sri P.Prasanna Kumar, learned Counsel for the petitioner seeks to assail the impugned order on the following grounds:
(i) The applicable provision with regard to the punishment for conspiracy is Section 120B(1) of IPC. But the trial Court wrongly applied Section 120B(2) of IPC.
(ii) Merely because the proceedings against accused Nos. 3 and 4 were quashed, accused No.2 who had not challenged the proceedings is not entitled to the benefit of the said orders.
(iii) The Hon’ble Supreme Court in Criminal Appeal No.1478/2010 has not considered the effect of Section 120B(1) of IPC. Therefore, that judgment does not operate as precedent under Article 141 of the Constitution. That becomes per incurium and sub silentio.
(iv) Accused No.1 was tried and convicted on 25.11.2016 holding that by abusing his official position as a public servant he favoured accused Nos.2 and 3 by providing tax relief. Thereby, the trial Court has accepted the role of accused Nos.2 to 4.
9. In support of his contentions, he relied upon the judgment of the Hon’ble Supreme Court in State of U.P. v. Synthetics and Chemicals Ltd.1
10. Per contra, Sri B.A.Belliappa, learned Counsel for accused No.2/respondent seeks to support the impugned order on the following grounds:
(i) The appellate order passed by accused No.1 was upheld by the Tax Appellate Tribunal. Therefore, the contention that the said order was passed to facilitate wrongful gain to the other accused is not tenable.
(ii) The Hon’ble Supreme Court quashed the proceedings against accused No.3 who is similarly situated. Therefore, it is not open to the petitioner to claim that the said order does not bind it.
(iii) The proceedings against accused No.4 were also quashed by this Court. The prosecution has not challenged the said order. On that count also, the present petition is not maintainable.
(iv) There was no charge under the PC Act against accused No.2. Therefore, now the said Court cannot assume the jurisdiction to try accused No.2 for the offence punishable under Section 120B of IPC only.
11. In support of his contentions, he relies upon the judgment of the Hon’ble Supreme Court in Issac Mattammel Cor-episcopa v. St.Mary’s Orthodox Syrian Church.2
12. Having regard to the submissions of both Counsel and the facts and circumstances, this Court has to examine whether the trial Court has committed any illegality, impropriety or incorrectness in discharging accused No.2-respondent.
13. There is no dispute that the allegations against accused Nos. 2 to 4 were same. It was alleged that they entered into conspiracy with accused No. 1 who tampered the appeal registers and antedating the appeals assumed the jurisdiction, held a farce hearing and allowed accused Nos. 2 and 3 the tax benefits.
14. Admittedly, the proceedings against accused No. 3 were quashed by the Hon’ble Supreme Court in Criminal Appeal No.1478/2010. The grounds of quashing the proceedings against accused No. 3 were that Section 13(1)(d) of the PC Act is not applicable to accused No. 3, as he is not a public servant. It was further held that in view of non-applicability of Section 13(1)(d) of the PC Act, the offence punishable under Section 120B of IPC attracts simple imprisonment of six months. In such event, there is bar for taking cognizance of such offence beyond one year from the date of the knowledge of the offence.
15. In Crl.P.No.5345/2009, this Court quashed the proceedings against accused No. 4. The only contention of the petitioner is that the judgment of the Supreme Court in Criminal Appeal No.1478/2010 does not become a precedent for accused Nos. 2’s case, since the Hon’ble Supreme Court did not consider the effect of Section 120B(1) of IPC.
16. Learned Counsel for the petitioner relied on Section 120B(1) of IPC which reads as follows:
“120B. Punishment of criminal conspiracy
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.”
17. According to the petitioner’s Counsel, the offence under Section 13(1)(d) and 13(2) of the PC Act carries imprisonment upto seven years and that is covered under Section 120B(1) of IPC. Therefore, he claims that the observation of the Supreme Court that the offence under Section 120B of IPC against accused No. 3 carries imprisonment only upto six months was a misconception. He further contended that the Supreme Court did not consider Section 120B(1) of IPC, therefore, the said judgment becomes per incurium and sub silentio and cannot be followed or applied to accused No.2.
18. It is no doubt true that in para 41 of the judgment in Synthetics and Chemicals Ltd.’s case referred to supra it was held that decision which is not express and is not founded on reason nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141 of the Constitution. But in the very same judgment, it was held that uniformity and consistency are core of judicial discipline.
19. Petitioner was a party to the criminal appeal filed by accused No. 3 before the Supreme Court. In the absence of the copies of pleadings in the said case, it cannot be said that the petitioner did not raise this issue of applicability of Section 120B(1) of IPC in the said criminal appeal. If at all there was any error on the face of the record in the Supreme Court’s judgment passed in favour of accused No.2 for non-consideration of Section 120B(1) of IPC, the remedy of the petitioner was to seek review of the said order. Without doing that, the petitioner cannot be permitted to argue before this Court that the Hon’ble Supreme Court failed to consider the effect of Section 120B(1) of IPC and the judgment of the Hon’ble Supreme Court was per incurium.
20. Further a co-ordinate bench of this Court in Crl.P.No.5345/2009 quashed the proceedings against accused No.4. Admittedly, the petitioner has not challenged the said order and allowed that order to attain finality. It is not open to the petitioner to contend that the judgment of this Court and of the Hon’ble Supreme Court relating to accused Nos. 3 and 4 could not have been relied by the trial Court in discharging accused No. 2.
21. The Hon’ble Supreme Court in Issac Mattammel Cor-episcopa’s case referred to supra has held that as per Article 141 of the Constitution of India, law declared by this Court is binding on all Courts and under Article 144 of the Constitution of India, civil and judicial authorities within the territory of India shall act in aid of the Supreme Court.
22. When the order of the Hon’ble Supreme Court was not sought to be reviewed, the contention that the said judgment was per incurium and that should not have been followed by the trial Court and does not bind the parties runs contrary to judicial discipline.
23. For the aforesaid reasons, the impugned order of discharge does not suffer vice of illegality, impropriety or incorrectness. Therefore, the revision petition dismissed.
Notes:-
1 (1991) 4 SCC 139
2 (2019) 10 SCC 606
Does the Australian Supreme court recieve the same support of all courts?
As in the India’s legal system.
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