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2007(2) Supreme 153
SUPREME COURT OF INDIA
(From Madras High Court)
S.B. Sinha and Dalveer Bhandari, JJ.
State, CBI—Appellant
versus
Sashi Balasubramanian & Anr.—Respondents
Criminal Appeal No. 1100 of 2006
(Arising out of SLP (Crl.) No. 996 of 2006)
Decided on 31-10-2006
Counsel for the Parties :
For the Appellant : Vikas Singh, A.S.G., Mrs. Swarupa Reddy and P. Parmeswaran, Advocates.
For the Respondents : Dr. Manish Singhvi, P.V. Yogeswaran and T. Raja, Advocates.
Held : The immunity under the scheme is an not absolute one. The designated authority may impose certain conditions while making an inquiry contained in Section 90. (Para 25)
The immunity granted is subject to the conditions provided in Section 90. The immunity is in relation to institution of any proceeding for prosecution for any offence. Such offence may be either under the direct tax enactment or indirect enactment. Immunity is also granted from imposition of penalty under such enactments. However, immunity also extends to matters covered under the declaration under Section 88. Section 95 provides for an exception to the Scheme. Once the provisions of Section 95 are attracted, the Scheme shall not apply. A determination might have been made although the Scheme was not applied, but the same may not per se confer a right of obtaining any immunity in terms of Section 91 of the Act. Clause (iii) of Section 95 while laying down the exceptions, enumerates offences under Chapter IX or Chapter XVII of the IPC and certain other statutes. It also makes an exception, if a proceeding for enforcement of any civil liability has been instituted. Clause (iii) of Section 95 would be attracted if, inter alia, any prosecution for any offence enumerated thereunder has been instituted on or before the filing of the declaration.(Para 26)
The First Information Report in regard to the offences committed, as indicated hereinbefore, was lodged on 02.03.1995. The investigation started immediately thereafter. The investigation was being carried on by the Central Bureau of Investigation (Economic Offences Wing). Only at a much later stage, namely, more than three years thereafter, i.e. on 31.12.1998, declarations were filed. Charge-sheet in the criminal case was filed on 12.04.1999. (Para 27)
It is in the aforementioned context, interpretation of the word prosecution assumes significance. The term prosecution would include institution or commencement of a criminal proceeding. It may include also an inquiry or investigation. The terms prosecution and cognizance are not interchangeable. They carry different meanings. Different statutes provide for grant of sanction at different stages. (Para 28)
The Legislature with a definite purpose thought of granting an exemption from the operation of the Act, if no prosecution is initiated under the provisions of the statute specified thereunder. Chapter IX of the Penal Code deals with public servants. Chapter XVII thereof deals with offences relating to property. Offences under other enactments are of serious nature. Thus, presumably commission of offences under the other Acts enumerated therein were considered to be serious enough by the Parliament, so as to exclude the application of the Scheme, which includes Prevention of Corruption Act.(Para 31)
In any view of the matter, an immunity is granted only in respect of offences purported to have been committed under direct tax enactment or indirect tax enactment, but by no stretch of imagination, the same would be granted in respect of offences under the Prevention of Corruption Act. A person may commit several offences under different Acts; immunity granted in relation to one Act would not mean that immunity granted would automatically extend to others. By way of example, we may notice that a person may be prosecuted for commission of an offence in relation to property under the Indian Penal Code as also under another Act, say for example, the Prevention of Corruption Act. Whereas charges under the Prevention of Corruption Act may fail, no sanction having been accorded therefor, the charges under the Penal Code would not.(Para 32)
The High Court has not held that the offences alleged against Respondents are so inextricably connected that it cannot be separated so much so that in the event if it be held that private parties cannot be proceeded with at all, the case against public servants, would invariably fail. We, thus, as at present advised, do not intend to delve deep into the said question.(Para 33)
In the instant case, resorting to any device or camouflage has not been alleged. It is also not a case that the provisions of the Indian Penal Code or the Prevention of Corruption Act cannot be said to have any application, although linked with an offence under Section 136 of the Customs Act. An ultimate purpose of commission of an offence may be to commit one offence under one statute, but indisputably in the process thereof offences under other statutes may also be committed.(Paras 39 and 40)
We, therefore, are of the opinion that the impugned judgment cannot be sustained. It is set aside accordingly. The High Court, however, did not go into the merit of the matter. It proceeded on the basis that the continuation of the prosecution as against Respondents was unsustainable in law. Although prosecution as against Respondents herein may be held to be not maintainable, in our opinion, they are entitled to contend that even if the materials brought on records are given face value and taken to be correct in their entirety, no case has been made out as against them. The appeal is allowed, the impugned judgment is set aside with the aforementioned observations.(Paras 52 to 54)
JUDGMENT
S.B. Sinha, J.—Delay condoned.
2. Leave granted.
3. Interpretation and/or application of the Kar Vivad Samadhan Scheme 1998 framed under the Finance (No.2) Act, 1998 is in question in this appeal which arises out of a judgment and order dated 20.01.2005 passed by the High Court of Madras in Crl.OP Nos.31422 and 36254 of 2004.
4. Shorn of all unnecessary details, the fact of the matter is as under :
One M/s Best Fabrics (for short, ‘the Company’) had applied for an advance licence on 29.01.1993 from the Office of the Joint Director General of Foreign Trade, Chennai for import of cotton fabrics showing the export order for 47136 sets of ‘cotton mens ensemble’ under the ‘Duty Exemption Entitlement Certificate’ (for short, ‘the Scheme’). Upon scrutiny the application, a recommendation, however, was made to allow the said company to import ‘cotton fabrics of 44 inch widths’. As the item was not figuring in the standard input and output norms book, the file was placed before Respondent No. 1, Smt. Sashi Balasubramanian, by Sri V. Rajpriyan, Respondent No. 2 herein, for placing before the Zonal Advance Licensing Committee for recommendations as regards quantity and description of the goods to be allowed for import.
5. Approval for advance licence was granted by Smt. Sashi Balasubramanian. On allegations in regard to the grant of the said licence, a First Information Report was lodged on 02.03.1995 for commission of offences under Sections 120-B, 420 and 471 of the Indian Penal Code, Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 136 of the Customs Act, 1962.
6. The Company and its Directors, however, in the meanwhile filed an application in terms of the Scheme. Declarations were filed on 31.12.1998. The charge-sheet in the criminal case was filed on 12.04.1999.
7. Originally, there were seven accused; three out of them were the private parties, namely, M/s Best Fabrics, Shri S. Vaidyanathan and Shri Bharath Bhushan Goyal. Smt. Sashi Balasubramanian, Respondent No.1 herein, was the Deputy Director General of Foreign Trade and Shri V. Rajpriyan, Respondent No.2 herein, was the Controller of Exports and Imports. Apart from Respondents herein, two other officials were also arrayed as accused persons in the charge-sheet, namely, Shri S. Ramanathan, Assistant Collector and Shri A. Sivaram Kumar, Apprising Officer.
8. Accused Nos. 1 to 4 filed an application for quashing the criminal proceedings as against them before the High Court of Madras, which was registered as CC No. 34 of 1999. It is stated that by an order dated 29.04.2004, the said application has been allowed. No appeal is said to have preferred therefrom.
9. Respondents thereafter filed an application before the High Court with the self-same prayer, which by reason of the impugned judgment has been allowed.
10. Appellant is, thus, before us.
11. Mr. Vikas Singh, the learned Additional Solicitor General appearing on behalf Appellant urged:
(i)Having regard to the nature of the Scheme, the High Court committed a manifest error in opining that as the private parties became entitled to immunity from prosecution, the official respondents would also be covered thereby.
(ii)The High Court misconstrued and misinterpreted the provisions of Section 95 (iii) of the Act.
(iii)Public Servants were not entitled to any relief under the said Scheme and far less immunity from prosecution.
Dr. Manish Singhvi and Mr. T. Raja, the learned counsel appearing on behalf of Respondents, on the other hand submitted :
(i)The High Court cannot be said to have acted illegally and without jurisdiction, as Respondents herein were also entitled to the benefit of immunity scheme.
(ii)The doctrine of parity is applicable in the instant case, and, thus, as other accused similarly situated had been held to be entitled to the benefit of declaration dated 31.12.1998 made under the Scheme, there is no reason as to why Respondents would no
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