Important Point:
a) Merely because the accused has committed an offence falling under the special statue would not mean that the offences under the Indian Penal Code would get displaced.b) If the special Act has an overriding effect like the one under the Information Technology Act, then it makes all the difference. Once the special provisions having the overriding effect do cover a criminal act and the offender, he gets out of the net of the Indian Penal Code. The Supreme Court laid emphasis on the three provisions of the Information Technology Act i.e. Sections 67, 79 and 81. In the Gujarat Value Added Tax Act, 2003, there is no provision providing any overriding effect on any other law for the time being in force. What weighed with the Supreme Court was the fact that the provisions of the Information Technology Act deal with obscenity in electronic form and the same covers the offence under Section 292 of the Indian Penal Code.

J.B. Pardiwala, J.

1. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant - original accused No. 2 seeks to invoke the inherent powers of this Court, praying for quashing of the First Information Report being C.R. No. I-192 of 2016 registered with the Gandhidham 'A' Division Police Station, Gandhidham - Kachchh for the offence punishable under Sections 177, 406, 409, 419, 420, 465, 468, 471, 474, 477(A) and 120B of the Indian Penal Code and Sections 85(1)(b)(c)(e)(f)(g) and 85(4) of the Gujarat Value Added Tax Act, 2003.

2. The First Information Report came to be lodged at the Gandhidham 'A' Division Police Station by the respondent No. 2 serving as the 'Inspector of Commercial Tax', inter alia, alleging that the applicant evaded the tax liability of Rs. 24,96,72,373/- by preparing false record, the goods were exported outside the State of Gujarat, and thereby, evading the Value Added Tax payable to the State of Gujarat.

3. Mr. N.D. Nanavaty, the learned senior counsel appearing for the applicant submitted that when a special statute is created by the legislature to deal with particular type of offences, even if for the similar Act, an offence is created in a general statute i.e. the Indian Penal Code, a provision of the general statute cannot be invoked. The second contention of Mr. Nanavaty is that under Section 88 of the Act, 2003, the investigation of the crime in question cannot be entrusted to the police machinery.

4. Mr. Nanavaty seeks to rely upon two decisions: One of the Supreme Court in the case of Sharat Babu Digumati v. Govt. of NCT of Delhi, (2017) 2 SCC 18 and the another of the Punjab and Haryana High Court in the case of M/s. Mahalakshmi Spinners Ltd. v. State of Haryana, 2007 CrLJ 429.

5. On the other hand, this application has been vehemently opposed by Mr. Mitesh Amin, the learned Public Prosecutor appearing on behalf of the State - respondent.

6. Mr. Amin would submit that there is nothing in the statute i.e. the Value Added Tax Act, which provides the investigation to be carried out by a police officer. Mr. Amin seeks to rely upon the judgment of the Apex Court in the case of State of West Bengal v. Narayan K. Patodia, (2000) 4 SCC 447. Mr. Amin, placing reliance on the said decision of the Supreme Court, submits that in the absence of a prohibition in the statute prohibiting a police officer from carrying out investigation, when there are offences under the special statute and also under the general statute, the police can very well carry out the investigation. He submits that the allegations levelled against the applicant herein and the other co-accused are very serious. The tax evasion is to the tune of Rs. 24 Crore and odd. He pointed out that many documents have been forged for the purpose of evasion of the tax liability. He submits that the investigation is at a very crucial stage and the police should be permitted to complete the same in accordance with law.

7. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the F.I.R. should be quashed.

8. Before adverting to the rival submissions canvassed on the either side, few relevant provisions of the Act should be looked into.

9. Section 85 of the Act provides for offences and penalties. It reads as under:

"85. Offences and penalties.

(1) Whoever,-

(a) not being a registered dealer, falsely represents that he is or was a registered dealer at the time when he sells or purchases goods;

(b) knowingly furnishes a false return where the amount of tax, which could have been evaded if the false return had been accepted as true, exceeds Rs. 1000;

(c) knowingly produces before the Commissioner, false tax invoice, bill, voucher, cash-memorandum, declaration, certificate or other document for claiming deduction or tax credit, the value of which exceeds Rs. 1000

(d) fails to pay tax as per the returns filed by him;

(e