{"id":46524,"date":"2006-10-31T00:00:00","date_gmt":"2006-10-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-cbi-vs-sashi-balasubramanian-anr-on-31-october-2006"},"modified":"2018-10-30T16:39:58","modified_gmt":"2018-10-30T11:09:58","slug":"state-cbi-vs-sashi-balasubramanian-anr-on-31-october-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-cbi-vs-sashi-balasubramanian-anr-on-31-october-2006","title":{"rendered":"State, Cbi vs Sashi Balasubramanian & Anr on 31 October, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State, Cbi vs Sashi Balasubramanian & Anr on 31 October, 2006<\/div>\n
Author: S Sinha<\/div>\n
Bench: S.B. Sinha, Dalveer Bhandari<\/div>\n
           CASE NO.:\nAppeal (crl.)  1100 of 2006\n\nPETITIONER:\nState, CBI                                   \n\nRESPONDENT:\nSashi Balasubramanian & Anr.                 \n\nDATE OF JUDGMENT: 31\/10\/2006\n\nBENCH:\nS.B. Sinha & Dalveer Bhandari\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n[Arising out of SLP (Crl..) No.996 of 2006]<\/p>\n
S.B. SINHA, J.\n<\/p>\n<\/p>\n
     Delay condoned.\n<\/p>\n
\n     Leave granted.\n<\/p>\n
\n      Interpretation and\/or application of  the  Kar  Vivad<\/p>\n
Samadhan  Scheme 1998 framed under the Finance (No.2)  Act,<\/p>\n
1998  is  in question in this appeal which arises out  of  a<\/p>\n
judgment  and  order dated 20.01.2005 passed  by  the   High<\/p>\n
Court of Madras in Crl.OP Nos.31422 and 36254 of 2004.<\/p>\n
     Shorn  of  all  unnecessary details, the  fact  of  the<\/p>\n
matter is as under :\n<\/p>\n<\/p>\n
      One  M\/s  Best Fabrics (for short, the Company)  had<\/p>\n
applied  for  an  advance licence on  29.01.1993   from  the<\/p>\n
Office  of  the  Joint Director General  of  Foreign  Trade,<\/p>\n
Chennai  for  import  of cotton fabrics showing  the  export<\/p>\n
order  for   47136 sets of cotton mens ensemble under  the<\/p>\n
Duty  Exemption Entitlement Certificate (for  short,  the<\/p>\n
Scheme).   Upon scrutiny the application, a recommendation,<\/p>\n
however,   was  made  to allow the said  company  to  import<\/p>\n
cotton  fabrics of 44 inch widths.  As the  item  was  not<\/p>\n
figuring  in the standard input and output norms  book,  the<\/p>\n
file   was  placed  before  Respondent  No.  1,  Smt.  Sashi<\/p>\n
Balasubramanian,  by  Sri  V. Rajpriyan,  Respondent  No.  2<\/p>\n
herein,  for  placing  before the  Zonal  Advance  Licensing<\/p>\n
Committee  for  recommendations  as  regards  quantity   and<\/p>\n
description of the goods to be allowed for import.<\/p>\n
      Approval for advance licence was granted by Smt. Sashi<\/p>\n
Balasubramanian.  On allegations in regard to the  grant  of<\/p>\n
the said licence,  a First Information Report was lodged  on<\/p>\n
02.03.1995 for commission of offences under Sections  120-B,<\/p>\n
420  and  471 of the Indian Penal Code,  Section 13(2)  read<\/p>\n
with  Section 13(1)(d) of the Prevention of Corruption  Act,<\/p>\n
1988 and Section 136 of the Customs Act, 1962.<\/p>\n
       The  Company  and  its  Directors,  however,  in  the<\/p>\n
meanwhile  filed  an application in terms  of  the   Scheme.<\/p>\n
Declarations were filed on 31.12.1998.  The charge-sheet  in<\/p>\n
the criminal case was filed on 12.04.1999.<\/p>\n
     Originally, there were seven accused; three out of them<\/p>\n
were the private parties, namely, M\/s Best Fabrics, Shri  S.<\/p>\n
Vaidyanathan  and  Shri Bharath Bhushan Goyal.   Smt.  Sashi<\/p>\n
Balasubramanian,  Respondent No.1  herein,  was  the  Deputy<\/p>\n
Director  General of Foreign Trade and Shri V.  Rajpriyan  ,<\/p>\n
Respondent  No.2 herein, was the Controller of  Exports  and<\/p>\n
Imports.     Apart  from  Respondents  herein,   two   other<\/p>\n
officials were also arrayed as accused persons in the charge-<\/p>\n
sheet,  namely, Shri S. Ramanathan, Assistant Collector  and<\/p>\n
Shri A. Sivaram Kumar, Apprising Officer.<\/p>\n
      Accused  Nos. 1 to 4 filed an application for quashing<\/p>\n
the  criminal  proceedings as against them before  the  High<\/p>\n
Court  of Madras, which was registered as CC No. 34 of 1999.<\/p>\n
It  is  stated that by an order dated 29.04.2004,  the  said<\/p>\n
application  has been allowed.  No appeal is  said  to  have<\/p>\n
preferred therefrom.\n<\/p>\n<\/p>\n
      Respondents thereafter filed an application before the<\/p>\n
High Court with the self-same prayer, which by reason of the<\/p>\n
impugned judgment has been allowed.\n<\/p>\n<\/p>\n
     Appellant is, thus, before us.\n<\/p>\n
\n      Mr.  Vikas  Singh,  the learned  Additional  Solicitor<\/p>\n
General appearing on behalf Appellant urged :<\/p>\n
(i)  Having  regard  to the nature of the Scheme,  the  High<\/p>\n
     Court committed a manifest error in opining that as the<\/p>\n
     private  parties  became  entitled  to  immunity   from<\/p>\n
     prosecution,  the official respondents  would  also  be<\/p>\n
     covered thereby.\n<\/p>\n<\/p>\n
(ii) The  High  Court  misconstrued and  misinterpreted  the<\/p>\n
     provisions of Section 95 (iii) of the  Act.<\/p>\n
(iii)      Public  Servants were not entitled to any  relief<\/p>\n
     under  the  said  Scheme  and far  less  immunity  from<\/p>\n
     prosecution.\n<\/p>\n
\n     Dr.  Manish  Singhvi  and Mr.  T.  Raja,   the  learned<\/p>\n
counsel  appearing on behalf of  Respondents, on  the  other<\/p>\n
hand submitted :\n<\/p>\n<\/p>\n
(i)  The  High  Court cannot be said to have acted illegally<\/p>\n
     and  without  jurisdiction, as Respondents herein  were<\/p>\n
     also entitled to the benefit of immunity scheme.<\/p>\n
(ii) The  doctrine  of parity is applicable in  the  instant<\/p>\n
     case,  and, thus,  as other accused similarly  situated<\/p>\n
     had  been  held  to  be  entitled  to  the  benefit  of<\/p>\n
     declaration  dated  31.12.1998 made under  the  Scheme,<\/p>\n
     there  is no reason as to why Respondents would not  be<\/p>\n
     entitled thereto.\n<\/p>\n<\/p>\n
(iii)      Section 95 of the Act cannot be invoked  for  the<\/p>\n
     said  offence  and in that view of the  matter,  it  is<\/p>\n
     impermissible  in law to split up the offences  between<\/p>\n
     private  parties and the public servants,  particularly<\/p>\n
     when charges had been framed under Section 120-B of the<\/p>\n
     Indian Penal Code.\n<\/p>\n<\/p>\n
(iv) As  the  charges  formed part of the same  transaction,<\/p>\n
     either   all  the  persons  involved  therein  may   be<\/p>\n
     proceeded against  or none at all.\n<\/p>\n<\/p>\n
(v)  Section  95(iii)  of  the Act, as the  High  Court  has<\/p>\n
     rightly opined, must be held to be inapplicable in  the<\/p>\n
     facts and circumstances of the case.\n<\/p>\n<\/p>\n
(vi) In  any  event,  even if the allegations  made  against<\/p>\n
     Respondents  are taken to be  correct and  accepted  in<\/p>\n
     its  entirety, the same does not constitute any offence<\/p>\n
     as alleged or at all.\n<\/p>\n
\n      An  additional submission was made by Mr. T. Raja that<\/p>\n
his  client  having worked under the orders  of  Smt.  Sashi<\/p>\n
Balasubramanian,  cannot  be  said  to  have  committed  any<\/p>\n
offence at all.\n<\/p>\n<\/p>\n
      The Parliament enacted the Finance Act, 1998.  It came<\/p>\n
into  force with effect from 29.03.1998.  Chapter IV of  the<\/p>\n
said Act provides for the Kar Vivad Samadhan Scheme, 1998.<\/p>\n
It  came  into  force  with  effect  from  the  1st  day  of<\/p>\n
September, 1998.\n<\/p>\n<\/p>\n
     Declarant has been defined in Section 87(a) to mean a<\/p>\n
person  making  a declaration under Section  88.   Disputed<\/p>\n
tax has been defined in Section 87(f) to mean the total tax<\/p>\n
determined  and  payable, in respect of an  assessment  year<\/p>\n
under  any direct tax enactment but which remains unpaid  as<\/p>\n
on  the  date  of making the declaration under  Section  88.<\/p>\n
Indirect  tax enactment has been defined in Section  87(j)<\/p>\n
in the following terms :\n<\/p>\n<\/p>\n
          (j)  indirect  tax  enactment  means   the
\n          Customs Act, 1962 (52 of 1962) or the Central
\n          Excise  Act, 1944 (1 of 1944) or the  Customs
\n          Tariff  Act, 1975 (51 of 1975) or the Central
\n          Excise  Tariff Act, 1985 (5 of 1986)  or  the
\n          relevant  Act  and  includes  the  rules   or
\n          regulations made under such enactment;<\/p>\n
     Section 87(k) of the Act defines the person to mean :\n<\/p><\/blockquote>\n
          (k) person includes <\/p>\n<\/blockquote>\n
               (i)  an individual,\n<\/p><\/blockquote>\n
(ii) a Hindu undivided family,\n<\/p><\/blockquote>\n
(iii)     a company,\n<\/p><\/blockquote>\n
(iv) a firm\n<\/p><\/blockquote>\n
(v)  an association of persons or a body of individuals,
\nwhether incorporated or not,\n<\/p><\/blockquote>\n
(vi) a local authority,\n<\/p><\/blockquote>\n
(vii)     every artificial juridical person, not falling
\nwithin any of the preceding sub-clauses;\n<\/p><\/blockquote>\n
(viii)    assessee, as defined in rule 2 of the Central
\nExcise Rules, 1944;\n<\/p>\n
(ix) exporter as defined in clause (20) of section 2 of
\nthe Customs Act, 1962 (52 of 1962);\n<\/p>\n
(x)  importer as defined in clause (26) of section 2 of
\nthe Customs Act, 1962 (52) of 1962);\n<\/p>\n
(xi) any person against whom proceedings have been
\ninitiated and are pending under any direct tax enactment
\nor indirect tax enactment.<\/p>\n
     Section 88, inter alia, provides :\n<\/p>\n<\/p>\n
          88.   Subject  to  the  provisions  of  this
\n          Scheme,  where any person makes, on or  after
\n          the  1st  day of September, 1998  but  on  or
\n          before  the  31st day of December,  19998,  a
\n          declaration  to the designated  authority  in
\n          accordance with the provisions of section  89
\n          in    respect    of    tax   arrear,    then,
\n          notwithstanding  anything  contained  in  any
\n          direct   tax   enactment  or   indirect   tax
\n          enactment or any other provision of  any  law
\n          for  the  time  being in  force,  the  amount
\n          payable  under  this Scheme by the  declarant
\n          shall  be  determined at the rates  specified
\n          hereunder, namely :-\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
          (f)  where the tax arrears is payable under the indirect
\n               tax enactment –<\/p><\/blockquote>\n
               (i)  in  a  case  where the  tax  arrear
\n                    comprises fine, penalty or interest
\n                    but   does   not   include   duties
\n                    (including drawback of duty, credit
\n                    of  duty or any amount representing
\n                    duty)  or  cesses, at the  rate  of
\n                    fifty  per  cent, of the amount  of
\n                    such fine, penalty or interest, due
\n                    or  interest, due or payable as  on
\n                    the  date  of  making a declaration
\n                    under section 88,<\/p>\n
               (ii) in  any other case, at the rate  of
\n                    fifty  per  cent, of the amount  of
\n                    duties (including drawback of duty,
\n                    credit   of  duty  or  any   amount
\n                    representing duty) or cess  due  or
\n                    payable  on  the date of  making  a
\n                    declaration under section 88.<\/p>\n
      A  declaration  is required to be filed  in  the  form<\/p>\n
prescribed  therefor.  Time and manner  of  payment  of  tax<\/p>\n
arrears  is provided for in Section 90.  Section 91 provides<\/p>\n
for  immunity from prosecution and imposition of penalty  in<\/p>\n
certain  cases.   Section  95  provides  for  exceptions  as<\/p>\n
regards   the  applicability of the  Scheme,   Clause  (iii)<\/p>\n
whereof, which is relevant for our purpose, reads as under :<\/p>\n
          95. The provisions of this Section shall not
\n          apply <\/p>\n<\/blockquote>\n
          (iii)      to  any person in respect of  whom
\n               prosecution  for any offence  punishable
\n               under Chapter IX or Chapter XVII of  the
\n               Indian  Penal  Code (45  of  1860),  the
\n               Foreign  Exchange Regulation  Act,  1973
\n               (46  of  1973), the Narcotic  Drugs  and
\n               Psychotropic Substances Act, 1985 (61 of
\n               1985),  the  Terrorists  and  Disruptive
\n               Activities (Prevention) Act, 1987 (28 of
\n               1987), the Prevention of Corruption Act,
\n               1988 (49 of 1988), or for the purpose of
\n               enforcement  of any civil liability  has
\n               been  instituted on or before the filing
\n               of  the  declaration or such person  has
\n               been   convicted  of  any  such  offence
\n               punishable under any such enactment.<\/p>\n
     The  principal  questions which arise for consideration<\/p>\n
are <\/p>\n<\/blockquote>\n
  (i)  Whether  the Scheme  is applicable in relation  to  a<\/p>\n
       public servant ?\n<\/p><\/blockquote>\n
(ii) When does a prosecution start ?;\n<\/p>\n
(iii)     Whether the offences enumerated under Section
\n95(iii) are excluded from immunity in terms of Section 91
\nof the Act ?\n<\/p>\n
     The  Scheme  provides for an exception to  the  general<\/p>\n
law.   It  provides  for the mode and manner  in  which  the<\/p>\n
arrears  of tax was to be collected.   It dealt with  direct<\/p>\n
and  indirect taxes only.  Ex facie public servants  would<\/p>\n
not come within the purview of the Act.\n<\/p>\n
       Counsel for Respondents, however, suggest that public<\/p>\n
servants  would also come within the purview of the  Act  as<\/p>\n
against them also proceedings had been initiated.<\/p>\n
     Section  2(k)(xi), while defining a person  undoubtedly<\/p>\n
embraces  within  its fold  those against  whom  proceedings<\/p>\n
have  been  initiated,  but the same  relate  to  direct  or<\/p>\n
indirect tax enactments.  Proceedings contemplated under the<\/p>\n
Act  must have a nexus with arrears of tax.  Public servants<\/p>\n
who   can  never  file  a  declaration  would  not,  in  our<\/p>\n
considered view,  come within the purview thereof.<\/p>\n
     Of  course,  there  exists  a  distinction  between   a<\/p>\n
person and a declarant.  However, declaration is  to  be<\/p>\n
filed  by a person who would come within the purview of  the<\/p>\n
said  term, as has been stated in the interpretation  clause<\/p>\n
contained in  Section 2(k) of the Act.  Section 88  provides<\/p>\n
for  a  declaration to be made by a person and,  declarant<\/p>\n
means  a person making a declaration.  The applicability  of<\/p>\n
the  provisions of the Act must be judged in  the  aforesaid<\/p>\n
context.\n<\/p>\n
     The  definition of person must be read having  regard<\/p>\n
to term declarant i.e.  who files a declaration.<\/p>\n
     A  public  servant is enjoined with a duty  to  enforce<\/p>\n
tax enactments.  A declaration in terms of Section 88 can be<\/p>\n
filed  by  a  declarant for determination of the tax  arrear<\/p>\n
under  the Scheme at the rates specified thereunder.  Public<\/p>\n
servants,  therefore, cannot not take  the  benefit  of  the<\/p>\n
scheme.   Section  90 provides for the time  and  manner  of<\/p>\n
payment  of  tax  arrear.  The amount of arrear  of  tax  is<\/p>\n
required to be determined within a period of sixty days from<\/p>\n
the  date  of  receipt of the declaration under Section  91,<\/p>\n
whereupon a certificate is to be granted in such form as may<\/p>\n
be  prescribed.   The  certificate is granted  only  to  the<\/p>\n
declarant,  which  would  contain  the  particulars  of  tax<\/p>\n
arrears and the sum payable after such determination towards<\/p>\n
full and final settlement of tax arrears.<\/p>\n
     The  immunity under the scheme is an not absolute  one.<\/p>\n
The designated authority may impose certain conditions while<\/p>\n
making an inquiry contained in Section 90.<\/p>\n
     The  immunity  granted  is subject  to  the  conditions<\/p>\n
provided  in  Section 90.  The immunity is  in  relation  to<\/p>\n
institution  of  any  proceeding  for  prosecution  for  any<\/p>\n
offence.   Such offence may be either under the  direct  tax<\/p>\n
enactment  or indirect enactment.  Immunity is also  granted<\/p>\n
from  imposition of penalty under such enactments.  However,<\/p>\n
immunity   also  extends  to  matters  covered   under   the<\/p>\n
declaration  under Section 88.  Section 95 provides  for  an<\/p>\n
exception to the Scheme.  Once the provisions of Section  95<\/p>\n
are  attracted, the Scheme shall not apply.  A determination<\/p>\n
might  have  been made although the Scheme was not  applied,<\/p>\n
but  the same may not per se confer a right of obtaining any<\/p>\n
immunity  in terms of  Section 91 of the Act.  Clause  (iii)<\/p>\n
of  Section  95 while laying down the exceptions, enumerates<\/p>\n
offences  under Chapter IX or Chapter XVII of  the  IPC  and<\/p>\n
certain other statutes.   It also makes an exception,  if  a<\/p>\n
proceeding for enforcement of any civil liability  has  been<\/p>\n
instituted.   Clause (iii) of Section 95 would be  attracted<\/p>\n
if,  inter  alia, any prosecution for any offence enumerated<\/p>\n
thereunder  has been instituted on or before the  filing  of<\/p>\n
the declaration.\n<\/p>\n
     The  First Information Report in regard to the offences<\/p>\n
committed,   as  indicated  hereinbefore,  was   lodged   on<\/p>\n
02.03.1995.     The   investigation   started    immediately<\/p>\n
thereafter.  The investigation was being carried on  by  the<\/p>\n
Central  Bureau  of Investigation (Economic Offences  Wing).<\/p>\n
Only  at  a much later stage, namely, more than three  years<\/p>\n
thereafter,  i.e. on 31.12.1998,  declarations  were  filed.<\/p>\n
Charge-sheet in the criminal case was filed on 12.04.1999.<\/p>\n
     It  is in the aforementioned context, interpretation of<\/p>\n
the   word  prosecution  assumes  significance.  The  term<\/p>\n
prosecution  would include institution or commencement  of<\/p>\n
a  criminal  proceeding.  It may include also an inquiry  or<\/p>\n
investigation. The terms prosecution and cognizance  are<\/p>\n
not   interchangeable.   They  carry   different   meanings.<\/p>\n
Different   statutes  provide  for  grant  of  sanction   at<\/p>\n
different stages.\n<\/p>\n
     In  initio  means in the beginning.   The  dictionary<\/p>\n
meaning  of  initiation  is cause to begin.  Whereas  some<\/p>\n
statutes  provide for grant of sanction before a prosecution<\/p>\n
is  initiated,   some  others postulate  grant  of  sanction<\/p>\n
before  a cognizance is taken by  Court.  However,   meaning<\/p>\n
of the word may vary from case to case.  In its wider sense,<\/p>\n
the  prosecution means a proceeding by way of indictment  or<\/p>\n
information, and is not necessarily confined to  prosecution<\/p>\n
for an offence.\n<\/p>\n
     The  term  prosecution has been instituted would  not<\/p>\n
mean  when   charge-sheet has been filed and cognizance  has<\/p>\n
been taken.  It must be given its ordinary meaning.<\/p>\n
     The  Legislature  with a definite  purpose  thought  of<\/p>\n
granting an exemption from the operation of the Act,  if  no<\/p>\n
prosecution is initiated under the provisions of the statute<\/p>\n
specified  thereunder.  Chapter IX of the Penal  Code  deals<\/p>\n
with  public  servants.  Chapter XVII   thereof  deals  with<\/p>\n
offences  relating  to   property.   Offences  under   other<\/p>\n
enactments    are   of  serious  nature.  Thus,   presumably<\/p>\n
commission   of  offences under the  other  Acts  enumerated<\/p>\n
therein  were  considered  to  be  serious  enough  by   the<\/p>\n
Parliament, so as to exclude the application of the  Scheme,<\/p>\n
which includes  Prevention of Corruption Act.<\/p>\n
      In any view of the matter, an immunity is granted only<\/p>\n
in  respect  of  offences purported to have  been  committed<\/p>\n
under direct tax enactment or indirect tax enactment, but by<\/p>\n
no  stretch  of imagination, the same would  be  granted  in<\/p>\n
respect  of   offences  under the Prevention  of  Corruption<\/p>\n
Act.   A  person may commit several offences under different<\/p>\n
Acts;   immunity granted in relation to one  Act  would  not<\/p>\n
mean  that  immunity granted would automatically  extend  to<\/p>\n
others.  By way of example , we may notice that a person may<\/p>\n
be  prosecuted for commission of an offence in  relation  to<\/p>\n
property  under the Indian Penal Code as also under  another<\/p>\n
Act,  say  for  example, the Prevention of  Corruption  Act.<\/p>\n
Whereas  charges under the Prevention of Corruption Act  may<\/p>\n
fail, no sanction having been accorded therefor, the charges<\/p>\n
under the Penal Code  would not.\n<\/p>\n<\/p>\n
      The  High Court has not held that the offences alleged<\/p>\n
against  Respondents are so inextricably connected  that  it<\/p>\n
cannot  be separated so much so that in the event if  it  be<\/p>\n
held  that private parties cannot be proceeded with at  all,<\/p>\n
the  case  against  public servants, would invariably  fail.<\/p>\n
We, thus, as at present advised, do not intend to delve deep<\/p>\n
into  the  said  question.  However, to be fair  to  learned<\/p>\n
counsel, we may notice the decisions cited at the bar.<\/p>\n
       Reliance   placed  by  Mr.  Singhvi  on   Devarapalli<\/p>\n
Lakshminarayana  Reddy and Others v. V. Narayana  Reddy  and<\/p>\n
Others<\/a>   [(1976) 3 SCC 252] has no application to the  facts<\/p>\n
and  circumstances of the present case.  The question  which<\/p>\n
arose   for  consideration  therein  was  required   to   be<\/p>\n
determined in the context of the provisions of Sections  200<\/p>\n
and  202 of the 1898 Code vis-`-vis Sections 200 and 202  of<\/p>\n
the 1973 Code.  The question was as to whether cognizance is<\/p>\n
taken  before  issuance  of process  or  not.   It  in  that<\/p>\n
context, it was stated :\n<\/p>\n<\/p>\n
                  14.   This   raises  the  incidental
\n          question: What is meant by taking cognizance
\n          of  an  offence by a Magistrate  within  the
\n          contemplation of Section 190? This expression
\n          has  not  been defined in the Code. But  from
\n          the  scheme  of  the Code,  the  content  and
\n          marginal  heading  of  Section  190  and  the
\n          caption  of Chapter XIV under which  Sections
\n          190 to 199 occur, it is clear that a case can
\n          be said to be instituted in a court only when
\n          the  court  takes cognizance of  the  offence
\n          alleged  therein.  The  ways  in  which  such
\n          cognizance  can  be  taken  are  set  out  in
\n          clauses  (a), (b) and (c) of Section  190(1).<\/p><\/blockquote>\n
          Whether  the Magistrate has or has not  taken
\n          cognizance of the offence will depend on  the
\n          circumstances   of   the   particular    case
\n          including  the  mode in  which  the  case  is
\n          sought  to  be instituted, and the nature  of
\n          the  preliminary action, if any, taken by the
\n          Magistrate.   Broadly   speaking,   when   on
\n          receiving a complaint, the Magistrate applies
\n          his mind for the purposes of proceeding under
\n          Section  200  and the succeeding sections  in
\n          Chapter XV to the Code of 1973, he is said to
\n          have  taken cognizance of the offence  within
\n          the meaning to Section 190(l)(a). It, instead
\n          of  proceeding under Chapter XV, he  has,  in
\n          the  judicial  exercise  of  his  discretion,
\n          taken  action  of some other  kind,  such  as
\n          issuing  a search warrant for the purpose  of
\n          investigation,  or ordering investigation  by
\n          the police under Section 156(3), he cannot be
\n          said   to  have  taken  cognizance   of   any
\n          offence.<\/p>\n
     Institution  of  a  prosecution and  institution  of  a<\/p>\n
complaint  case  in  a criminal court  stand  on   different<\/p>\n
footings.  Whereas summons to an accused in a complaint case<\/p>\n
can  be  issued only upon taking cognizance of the  offence,<\/p>\n
the  same  would not mean in a case where first  information<\/p>\n
report   has   been  lodged  resulting  in   initiation   of<\/p>\n
investigation  or where it has been referred  to  police  or<\/p>\n
other  authorities for enquiry; even then a prosecution  may<\/p>\n
not be held to have been initiated at that stage.<\/p>\n
     What  transpires from the said decision is that whereas<\/p>\n
before cognizance is taken, application of mind on the  part<\/p>\n
of the court is imperative, taking action of some other kind<\/p>\n
would  not  mean  that cognizance has been taken.   In  some<\/p>\n
cases,  even  after  lodging of the  F.I.R.,  a  preliminary<\/p>\n
enquiry  which may not be an investigation into  the  crime,<\/p>\n
may be initiated.\n<\/p>\n<\/p>\n
     Strong  reliance  has also been placed on  Basir-ul-Haq<\/p>\n
and  Others v.  State of West Bengal<\/a> [(1953) SCR  836].  The<\/p>\n
question which arose for consideration therein  was  whether<\/p>\n
having  regard  to  the  nature  of  the  offence  allegedly<\/p>\n
committed by the accused named therein, it was capable to be<\/p>\n
split  up.  In the aforementioned context, it was held  that<\/p>\n
if  the offences are inseparable or incapable of being split<\/p>\n
up,  the  Court  will have no other option  but  to  pass  a<\/p>\n
judgment of acquittal, stating :\n<\/p>\n<\/p>\n
            14.  Though, in our judgment, Section  195
\n          does  not bar the trial of an accused  person
\n          for  a distinct offence disclosed by the same
\n          facts  and  which is not included within  the
\n          ambit  of  that section, it has  also  to  be
\n          borne  in  mind that the provisions  of  that
\n          section  cannot  be evaded  by  resorting  to
\n          devices  or  camouflages.  The  test  whether
\n          there  is  evasion of the section or  not  is
\n          whether  the  facts  disclose  primarily  and
\n          essentially an offence for which a  complaint
\n          of  the  court  or of the public  servant  is
\n          required.  In other words, the provisions  of
\n          the section cannot be evaded by the device of
\n          charging  a person with an offence  to  which
\n          that   section  does  not  apply   and   then
\n          convicting  him  of an offence  to  which  it
\n          does,   upon  the  ground  that  such  latter
\n          offence  is  a  minor  offence  of  the  same
\n          character,  or by describing the  offence  as
\n          being one punishable under some other section
\n          of the Indian Penal Code, though in truth and
\n          substance  the offence falls in the  category
\n          of  sections mentioned in Section 195 of  the
\n          Criminal Procedure Code.<\/p>\n
                                   [Emphasis supplied]<\/p>\n
      The observations in the said judgment must be held  to<\/p>\n
have  been made in the factual matrix obtaining therein  and<\/p>\n
not dehors the same.<\/p><\/blockquote>\n
     In  the  instant  case,  resorting  to  any  device  or<\/p>\n
camouflage  has not been  alleged.  It is also  not  a  case<\/p>\n
that  the  provisions  of  the  Indian  Penal  Code  or  the<\/p>\n
Prevention  of  Corruption Act cannot be said  to  have  any<\/p>\n
application,  although linked with an offence under  Section<\/p>\n
136 of the Customs Act.\n<\/p>\n
     An  ultimate purpose of commission of an offence may be<\/p>\n
to commit one offence under one statute, but indisputably in<\/p>\n
the process thereof   offences under other statutes may also<\/p>\n
be committed.\n<\/p>\n
     In   Hira  Lal  Hari  Lal Bhagwati v.  CBI,  New  Delhi<\/a><\/p>\n
[(2003)  5  SCC 257] this Court indisputably   proceeded  to<\/p>\n
hold  that  the  immunity  was qua  offence  but  Appellants<\/p>\n
therein   before   this  Court  were  the  assessees.    The<\/p>\n
prosecution  was also launched therein after  a  declaration<\/p>\n
was made.\n<\/p>\n
     We  may  also  notice that Brijesh  Kumar,  J.  in  his<\/p>\n
concurring but separate judgment took into consideration the<\/p>\n
fact  situation obtaining therein, namely, initiation  of  a<\/p>\n
criminal  proceeding  after issuance of  a  declaration  and<\/p>\n
after  withdrawal  of the case, in the  High  Court  in  the<\/p>\n
following terms :\n<\/p>\n<\/p>\n
          On  the one hand final settlement was  made
\n          after  determining the tax liability  on  the
\n          premise  that  the  appellants  were  neither
\n          convicted   nor  criminal  proceedings   were
\n          pending,   relating  to  any  offence   under
\n          Chapter  IX  or  XVII IPC, yet  the  criminal
\n          proceedings  are  being prosecuted  which  is
\n          apparently  against the very  spirit  of  the
\n          Scheme promulgated under the Finance (No.  2)
\n          Act   of  1998.  If  a  person  against  whom
\n          criminal  proceedings were pending,  relating
\n          to  offence under Chapter IX or XVII  IPC  or
\n          who   stood  convicted  under  any   of   the
\n          provisions  of those chapters, he  would  not
\n          have been eligible to seek benefit under  the
\n          Scheme and after accepting that position  and
\n          the due settlement, there was no occasion  to
\n          initiate    and    continue   the    criminal
\n          proceedings,  which  could  bring  about  the
\n          conviction  of  the  same  persons,  in  case
\n          prosecution ended successfully in  favour  of
\n          the State and against the appellants. If such
\n          a  condition is provided that on a particular
\n          date  a  criminal proceeding  should  not  be
\n          pending  against a person nor should he  have
\n          been  convicted of an offence, as a condition
\n          precedent for a settlement, and on that basis
\n          a  settlement is brought about, it  does  not
\n          mean that later on, one could turn around and
\n          get  the  declarant convicted for a  criminal
\n          offence   too,   after  settlement   of   the
\n          liability.  More so, when in view of  Section
\n          90   sub-section  (4)  of  the   Scheme   the
\n          declarant is obliged to withdraw an appeal or
\n          proceedings  regarding tax liability  pending
\n          before  the High Court or the Supreme  Court,
\n          which had also been done in the case in hand.
\n          That is to say that on one hand the declarant
\n          is   not  permitted  to  pursue  the  remedy,
\n          regarding  tax  liability, which  is  already
\n          pending before the courts of law, as they are
\n          either deemed to be withdrawn by operation of
\n          law  or  they  have  to  be  withdrawn  by  a
\n          positive  act of the party and yet  prosecute
\n          such  persons for their conviction  as  well.<\/p><\/blockquote>\n
          The declarant could not be dragged and chased
\n          in  criminal  proceedings after  closing  the
\n          other  opening making it a dead  end.  It  is
\n          highly  unreasonable and arbitrary to  do  so
\n          and   initiation  and  continuance  of   such
\n          proceedings lack bona fides.<\/p>\n
  An accused may be discharged from a criminal case under<\/p>\n
Section 245 of the Code, if his civil liability has  been<\/p>\n
determined in his favour; but the same must have a direct<\/p>\n
nexus  with his criminal liability.  He would not acquire<\/p>\n
any  immunity only because civil and criminal liabilities<\/p>\n
have  some connection, however, remote the same  may  be.<\/p>\n
The connection between the two types of liabilities  must<\/p>\n
be  direct  and  proximate.  If in  incurring  the  civil<\/p>\n
liability,   he   has   committed   offences    wherewith<\/p>\n
determination  thereof has no nexus, the  immunity  would<\/p>\n
not extend thereto.\n<\/p>\n
     We   will  give  a  simple  example.   A  person  while<\/p>\n
obtaining undue favour from an authority under the  indirect<\/p>\n
tax enactment, offers a bribe.  Obtaining of an undue favour<\/p>\n
resulting  in  prosecution under the indirect tax  enactment<\/p>\n
may  be  a separate offence , but  involvement of the public<\/p>\n
servant qua offences under the Prevention of Corruption  Act<\/p>\n
would be a separate and distinct one.\n<\/p>\n
     It  is  one thing to say that an Act constitutes   both<\/p>\n
civil  and  criminal wrong and in the self same  fact,  when<\/p>\n
compounding of offence is effected in relation to the  civil<\/p>\n
dispute,  the  High  Court may be justified  in  quashing  a<\/p>\n
complaint  under  the criminal case as was done  in  Central<\/p>\n
Bureau  of Investigation, SPE, SIU (X), New Delhi v. Duncans<\/p>\n
Agro  Industries Ltd., Calcutta<\/a>  [(1996) 5 SCC 591], but  it<\/p>\n
is another thing to say that prosecution under other statute<\/p>\n
would  also  fail.  It is in that view of the  matter,  this<\/p>\n
Court stated the law in the following terms :<\/p>\n
            26.     After    giving    our     careful
\n          consideration  to the facts and circumstances
\n          of  the case and the submissions made by  the
\n          respective   counsel  for  the  parties,   it
\n          appears  to  us  that  for  the  purpose   of
\n          quashing  the  complaint, it is necessary  to
\n          consider  whether  the  allegations  in   the
\n          complaint prima facie make out an offence  or
\n          not.  It  is not necessary to scrutinise  the
\n          allegations  for  the  purpose  of   deciding
\n          whether  such  allegations are likely  to  be
\n          upheld  in  the trial. Any action by  way  of
\n          quashing  the  complaint is an action  to  be
\n          taken  at the threshold before evidences  are
\n          led in support of the complaint. For quashing
\n          the   complaint  by  way  of  action  at  the
\n          threshold,  it  is, therefore,  necessary  to
\n          consider   whether  on  the   face   of   the
\n          allegations,    a   criminal    offence    is
\n          constituted or not.<\/p>\n
      Reliance  has  also been placed on K.C.  Builders  and<\/p>\n
Another  v. Assistant Commissioner of Income Tax<\/a>  [(2004)  2<\/p>\n
SCC  731].   The  question  which  arose  for  consideration<\/p>\n
therein   was  as  to  whether  mens  rea  is  an  essential<\/p>\n
ingredient for imposition of penalty under Section 271(1)(c)<\/p>\n
of   the  Income  Tax  Act.   In  that  case,   finding   of<\/p>\n
concealment and subsequent levy of penalties had been struck<\/p>\n
down  by the Tribunal.  The assessment year was directed  to<\/p>\n
be  corrected in terms of Section 154 of the Act.  It was in<\/p>\n
that  fact situation, this Court opined that if the Tribunal<\/p>\n
has   set  aside  the  order  of  imposing  a  penalty   for<\/p>\n
concealment, there would be no concealment in  the  eyes  of<\/p>\n
the  law and, therefore, the prosecution should be proceeded<\/p>\n
against the accused and, thus, further proceedings would  be<\/p>\n
illegal and without jurisdiction, stating :<\/p>\n
          When the Tribunal has set aside the levy of
\n          penalty, the criminal proceedings against the
\n          appellants cannot survive for further
\n          consideration<\/p>\n
      In  the fact of that case, it was held that the charge<\/p>\n
of conspiracy had not been proved  and no case had also been<\/p>\n
made out for establishing the offence of cheating.  The gist<\/p>\n
of  the  prosecution case therein was that the  accused  had<\/p>\n
filed  false  returns of income before the Department  which<\/p>\n
led  concealment  of  income to evade  tax.   The  question,<\/p>\n
therefore,  was as to whether there had been any concealment<\/p>\n
of income at all.  The said decision, therefore, cannot have<\/p>\n
any application whatsoever.<\/p><\/blockquote>\n
     Reliance  has  also  been placed on Central  Bureau  of<\/p>\n
Investigation v. Akhilesh Singh<\/a> [(2005) 1 SCC 478].  In that<\/p>\n
case,  out of the three accused, two were discharged and  in<\/p>\n
that  view  of  the matter it was held that   the  basis  of<\/p>\n
alleged conspiracy by the respondent therein with Dr. Sanjay<\/p>\n
Singh lost its substratum.  It was in the factual matrix  of<\/p>\n
the  case  exercise of jurisdiction by the High Court  under<\/p>\n
Section  482 of the Code of Criminal Procedure was  held  to<\/p>\n
be  not to be suffering from any illegality or  infirmity.<\/p>\n
     We may, however, notice that in R.K. Garg etc. v. Union<\/p>\n
of  India  and Others [(1981) 4 SCC 675], it was  held  that<\/p>\n
only  because  exemption  had been granted  in  relation  to<\/p>\n
purchase of  bearer bonds, the same would not mean that  the<\/p>\n
offender  shall  stand  immuned from  other  offences  also.<\/p>\n
Bhagwati, J. speaking for the majority opined :<\/p>\n
          It will be seen that the immunities granted
\n          under  Section 3, sub-section  (1)  are  very
\n          limited  in  scope. They do not  protect  the
\n          holder  of  Special  Bearer  Bonds  from  any
\n          inquiry   or  investigation  into   concealed
\n          income  which could have been made if he  had
\n          not  subscribed to or acquired Special Bearer
\n          Bonds.  There  is no immunity  from  taxation
\n          given  to  the  black  money  which  may   be
\n          invested in Special Bearer Bonds. That  money
\n          remains subject to tax with all consequential
\n          penalties,    if   it   can   be   discovered
\n          independently of the fact of subscription  to
\n          or  acquisition of Special Bearer Bonds.  The
\n          only  protection  given by  Section  3,  sub-
\n          section  (1) is that the fact of subscription
\n          to  or  acquisition of Special  Bearer  Bonds
\n          shall be ignored altogether and shall not  be
\n          relied upon as evidence showing possession of
\n          undisclosed  money. This provision  relegates
\n          the  Revenue  to the position as  if  Special
\n          Bearer  Bonds had not been purchased at  all.
\n          If  without taking into account the  fact  of
\n          subscription  to  or acquisition  of  Special
\n          Bearer Bonds and totally ignoring it as if it
\n          were    non-existent,    any    inquiry    or
\n          investigation into concealed income could  be
\n          carried  out  and  such income  detected  and
\n          unearthed, it would be open to the Revenue to
\n          do  so  and  it  would be no answer  for  the
\n          assessee  to  say that this  money  has  been
\n          invested  by him in Special Bearer Bonds  and
\n          it is therefore exempt from tax or that he is
\n          on that account not liable to prosecution and
\n          penalty for concealment of such income.  This
\n          is  the  main difference between the impugned
\n          Act  and  the  Taxation Laws  (Amendment  and
\n          Miscellaneous  Provisions) Act,  1965.  Under
\n          the  latter Act, where gold is acquired by  a
\n          person  out of his undisclosed income,  which
\n          is  the  same thing as black money, and  such
\n          gold  is tendered by him as subscription  for
\n          the  National Defence Gold Bonds,  1980,  the
\n          income invested in such gold is exempted from
\n          tax,  but  where  Special  Bearer  Bonds  are
\n          purchased out of undisclosed income under the
\n          impugned  Act,  the income  invested  in  the
\n          Special  Bearer Bonds is not exempt from  tax
\n          and  if independently of the fact of purchase
\n          of the Special Bearer Bonds and ignoring them
\n          altogether,  such income can be detected,  it
\n          would be subject to tax. The entire machinery
\n          of   the   taxation  laws  for  inquiry   and
\n          investigation into concealed income  is  thus
\n          left  untouched and no protection is  granted
\n          to  a  person  in  respect of  his  concealed
\n          income  merely  because he has invested  such
\n          income  in  Special  Bearer  Bonds.   It   is
\n          therefore  incorrect to say that as  soon  as
\n          any person purchases Special Bearer Bonds, he
\n          is   immunised   against  the  processes   of
\n          taxation  laws.  Here  there  is  no  amnesty
\n          granted  in  respect  of  any  part  of   the
\n          concealed  income even though it be  invested
\n          in  Special Bearer Bonds. The whole object of
\n          the  impugned  Act is to induce those  having
\n          black money to convert it into white money by
\n          making   it   available  to  the  State   for
\n          productive  purposes,  without  granting   in
\n          return any immunity in respect of such  black
\n          money,  if  it could be detected through  the
\n          ordinary  processes of taxation laws  without
\n          taking  into account the fact of purchase  of
\n          Special Bearer Bonds.<\/p>\n
     We  may at this stage deal with another contention viz.\n<\/p><\/blockquote>\n
that if in the connected matter  where other public servants<\/p>\n
were  parties,  ,  no  appeal having  been  filed  from  the<\/p>\n
judgment of the High Court by the C.B.I., this appeal  would<\/p>\n
be  maintainable.   This  aspect  of  the  matter  has  been<\/p>\n
considered  by  a  three-Judge  Bench  of  this   Court   in<\/p>\n
Government of West Bengal v. Tarun K. Roy and Others<\/a> [(2004)<\/p>\n
1 SCC 347], wherein it was categorically stated :<\/p>\n
            Non-filing  of an appeal, in  any  event,
\n          would  not  be  a  ground  for  refusing   to
\n          consider  a  matter on its own  merits.  (See
\n          State of Maharashtra v. Digambar10.)<\/p>\n<\/blockquote>\n
            29.  In  State  of Bihar v. Ramdeo  Yadav11<\/a>
\n          wherein  this Court noticed Debdas Kumar1  by
\n          holding: (SCC p.    494, para 4)
\n            4.  Shri  B.B. Singh, the learned  counsel
\n          for the appellants, contended that though  an
\n          appeal against the earlier order of the  High
\n          Court has not been filed, since larger public
\n          interest  is  involved in the  interpretation
\n          given by the High Court following its earlier
\n          judgment,  the  matter requires consideration
\n          by   this  Court.  We  find  force  in   this
\n          contention.  In  the  similar  circumstances,
\n          this   Court  in  State  of  Maharashtra   v.<\/p><\/blockquote>\n
          Digambar10  and  in State of W.B.  v.  Debdas
\n          Kumar1 had held that though an appeal was not
\n          filed  against an earlier order, when  public
\n          interest  is  involved in  interpretation  of
\n          law,  the  Court is entitled to go  into  the
\n          question.<\/p>\n
[See also Union of India v. Pramod Gupta (Dead)<\/a> by Lrs.  and<\/p>\n
Others  (2005) 12 SCC 1]<\/p>\n
     In  this  case  also  public interest  is  involved  as<\/p>\n
interpretation  of  the  provisions  of  the   Act  were  in<\/p>\n
question.   Yet  again  there  cannot  be  any  equality  in<\/p>\n
illegality.\n<\/p>\n
[See  Secretary, State of Karnataka and Others   v.  Umadevi<\/a><\/p>\n
(3) and Others [(2006) 4 SCC 1]<\/p>\n
     We,  therefore,  are of the opinion that  the  impugned<\/p>\n
judgment cannot be sustained. It is set aside accordingly.<\/p>\n
     The  High Court, however, did not go into the merit  of<\/p>\n
the matter.  It proceeded on the basis that the continuation<\/p>\n
of      the   prosecution   as   against   Respondents   was<\/p>\n
unsustainable  in  law.   Although prosecution  as   against<\/p>\n
Respondents herein may  be held to be not maintainable,   in<\/p>\n
our  opinion, they are entitled to contend that even if  the<\/p>\n
materials brought on records are given face value and  taken<\/p>\n
to  be correct in their entirety, no case has been made  out<\/p>\n
as against them.\n<\/p>\n
     The  appeal  is allowed, the impugned judgment  is  set<\/p>\n
aside with the aforementioned observations.  No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State, Cbi vs Sashi Balasubramanian & Anr on 31 October, 2006 Author: S Sinha Bench: S.B. Sinha, Dalveer Bhandari CASE NO.: Appeal (crl.) 1100 of 2006 PETITIONER: State, CBI RESPONDENT: Sashi Balasubramanian & Anr. DATE OF JUDGMENT: 31\/10\/2006 BENCH: S.B. Sinha & Dalveer Bhandari JUDGMENT: J U D G M E […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-46524","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState, Cbi vs Sashi Balasubramanian & Anr on 31 October, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-cbi-vs-sashi-balasubramanian-anr-on-31-october-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State, Cbi vs Sashi Balasubramanian & Anr on 31 October, 2006 - 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