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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
K.R. SHRIRAM, AMIT B. BORKAR, JJ.
Reliance Industries Limited - Petitioner
Versus
Chief Commissioner of Income Tax & Ors. - Respondents
Writ Petition No. 464 of 2021
Decided On : 23-12-2021
Criminal Procedure Code, 1973 - Section 4(2) - Indian Penal Code, 1860 - Section 120B, 109, 420 - Prevention of Corruption Act 1988 - Section 13(1)(c) and (d) - DTVSV Act, 2020 - Section 9(c) - Constitution of India, 1950 - Articles 141 and 226 - Punishment of criminal Conspiracy - Punishment of abetment - Cheating - Petitioner originally filed petition challenging communication withdrawing earlier communication issued by office of Chief Commissioner of Income Tax Mumbai - By Communication petitioner was informed that they are eligible for resolution of tax disputes under provisions of (DTVSV Act). According to petitioner relying on communication petitioner had filed several applications for resolution of tax disputes - Whether a Special Judge could continue proceedings even after sole public servant had passed away.
Finding of the Court: Fact that only a private person is the accused in the case and that there is no public servant named as an accused in that case - A private person can be the only accused person in an offence under Section 8 or Section 9 of the said Act. And it is not necessary that a public servant should also be specifically named as an accused in the same case. Notwithstanding the fact that a private person is the only accused in an offence under Section 8 or Section 9, it can be tried only by a Special Judge - Therefore, not only would this enquiry arise before the Tax Authority but even assuming such an enquiry were to arise, the same require consideration Any finding by the Tax Authority on this issue, would amount to deciding on merits the two proceedings under the PC Act referred earlier - In light of the above, both the proceedings are cases where prosecution was instituted since in both cases an FIR had been duly lodged - Court make it clear that it is not law that only along with the junction of a public servant in array of parties, the Special Judge can proceed against private persons who have committed offences punishable under the PC Act.
Result: Petition dismissed.
The provided legal document does not explicitly discuss or specify the role or status of private counsel in criminal matters from the prosecution side. The focus of the document is primarily on the procedural aspects related to the institution of prosecution, the interpretation of when a prosecution is deemed to be instituted, and the applicability of certain legislative provisions to individuals involved in criminal proceedings. There are references to the participation of advocates and legal representatives, but no specific mention or detailed discussion about private counsel representing the prosecution or their role in criminal cases. Therefore, there is no paragraph number in the document that directly addresses or provides information about private counsel in criminal proceedings from the prosecution side.
JUDGMENT :
K.R. Shriram, J.
1. Rule. Rule made returnable forthwith and heard and disposed at the admission stage itself with the consent of the parties.
Heard, Shri Nankani, Shri Anil Singh and considered the pleadings and written submissions.
2. Petitioner originally filed the petition challenging the communication dated 25th January 2021 withdrawing the earlier communication dated 21st October 2020 issued by the office of Chief Commissioner of Income Tax, Mumbai. By this communication dated 21st October 2020, petitioner was informed that they are eligible for resolution of tax disputes under the provisions of the Direct Tax Vivad Se Vishwas Act 2020 (DTVSV Act). According to petitioner, relying on this communication petitioner had filed several applications for resolution of tax disputes. It is petitioner’s case that the stand of respondents is contrary to the plain language of Section 9(c) of the DTVSV Act.
3. Petitioner is desirous of availing the benefit of DTVSV Act with respect to certain pending income tax litigations before various appellate levels. By an application dated 15th April 2020, petitioner sought clarification from the revenue with respect to its eligibility under the DTVSV Act. A doubt regarding petitioner’s eligibility occurred in the mind of petitioner because of the following two proceedings:-
(A) FIR No.17/2014 dated 11th February 2014 under Section “Section 13(1)(c) and (d) of Prevention of Corruption Act (PCA) and 420/120 B of the Indian Penal Code (IPC) registered by Anti Corruption Bureau of the National Capital Territory of Delhi dated 14th February 2014 where no charge sheet has been filed. The Accused persons include petitioner. (hereinafter referred to as the first proceeding)
(B) Special CBI Case No.91 of 2011 pending before Special Judge for Greater Mumbai wherein the Ld. Special Judge has taken cognizance for “offences punishable under Section 120B r/w 420 of IPC and u/s 13(2) r/w 13(1)(d) of PC Act against the accused in the matter. The Accused named in the chargesheet include petitioner. (hereinafter referred to as the second proceeding)
4. Respondent no.1, by letter dated 21st October 2020, replied to petitioner’s application dated 15th April 2020 that petitioner was eligible / entitled to avail the benefit of DTVSV Act in accordance with law. Following the said communication, petitioner filed 27 applications for resolution of disputes under the DTVSV Act as mentioned in paragraph 4(M) of the Petition. In the petition that was lodged on 29th January 2021 it is also stated that petitioner was proposing to file further applications before the last date of filing of the application, i.e., 31st January 2021 and petitioner was ready and willing to pay the amounts as per the orders passed under the DTVSV Act.
Thereafter, petitioner received a letter dated 25th January 2021 from respondent no.1, whereby respondent no.1 conveyed to petitioner that in view of the provisions of Section 9(c) of the DTVSV Act, since the prosecution was instituted against petitioner under the Prevention of Corruption Act 1988 (PC Act), the letter dated 21st October 2020 issued to petitioner was contrary to the said provisions and withdrew the letter dated 21st October 2020.
5. Aggrieved by the said withdrawal, petitioner filed this petition impugning the letter dated 25th January 2021. Subsequently petitioner has, upon leave being granted amended the petition when petitioner’s 27 applications / declarations filed under the DTVSV Act were rejected. Petitioner has also impugned the rejection of petitioner’s applications under the DTVSV Act and has also sought declaration to hold and declare that petitioner is not rendered ineligible under the DTVSV Act on the ground stated in the letter dated 25th January 2021, i.e., prosecution was instituted against petitioner under PC Act.
6. Admittedly, the first and second proceedings are the hurdles for petitioner. These two proceedings are still pending. In any event, they were pending on
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