Back
2024 Supreme(Online)(ALL) 178
HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
Hon'ble Subhash Vidyarthi,J.
Sandeep Miglani – Appellant
Versus
Union Of India Thru. Deputy Commissioner Of Income Tax Kanpur And Another – Respondent
APPLICATION U/s 482 No. - 5145 of 2024 at Lucknow
Petitioner: Rama Soni , Rohit Kumar Tripathi and Shubhanjali Shukla
Respondent: Kushagra Dikshit
The court upheld that an inquiry under Section 202 Cr.P.C. is not mandatory when a complaint is filed by a public servant, affirming the validity of the summoning order.
Headnote:(A) Prohibition of Benami Property Transaction Act, 1988 - Sections 3, 50, and 53 - Criminal Procedure Code, 1973 - Sections 200 and 202 - Validity of summoning order challenged - Cognizance taken by Special Court based on complaint filed by public servant - Inquiry under Section 202 not mandatory when complaint is by public servant - Sufficient grounds established for proceeding against applicant. (Paras 2, 6, 16, 18)
(B) Jurisdiction - Territorial jurisdiction of the court - Inquiry under Section 202 Cr.P.C. is not required when the complaint is made by a public servant. (Paras 6, 18)
Facts of the case:
The petitioner challenged the validity of a summoning order issued by the IX Additional Sessions Judge, Lucknow, in a case under the Benami Act, asserting that the court lacked territorial jurisdiction to summon him as he resides in New Delhi. The complaint was based on a search revealing a benami transaction involving a cash deposit of Rs. 7,50,000/- in the applicant's bank account.
Findings of Court:
The court found that the complaint filed by the Union of India through a public servant was valid, and the inquiry conducted was sufficient to establish grounds for proceeding against the applicant.
Issues: The main issue was whether the court had jurisdiction to summon the applicant residing outside its territorial limits and whether an inquiry under Section 202 Cr.P.C. was necessary.
Ratio Decidendi: The court ruled that the exemption under Section 200 Cr.P.C. applies to complaints made by public servants, thus negating the need for an inquiry under Section 202 Cr.P.C. The summoning order was upheld as it met the statutory requirements.
Result: Application dismissed.
2. By means of the instant application filed under Section 482 Cr.P.C., the petitioner has challenged validity of an order dated 27.02.2024 passed by the IX Additional Sessions Judge, Lucknow in Complaint Case No. 277 of 2024 whereby the trial court has taken cognizance of offence under Section 53 read with Section 3 of the Prohibition of Benami Property Transaction Act, 1988 (hereinafter referred to as ‘Benami Act’) and he has been summoned to face trial.
3. The opposite party no. 1-Union of India has filed a complaint under Section 53 of Benami Act through a Deputy Commissioner of Income Tax/Initiating Officer, Benami Prohibition, Benami Unit, Kanpur, after obtaining sanction for prosecution from the Principal Director of Income Tax (Investigation) Kanpur under Section 55 of the Benami Act on 29.01.2024.
4. The complaint states that a search and seizure under Section 132 of the Income Tax Act, 1961 was conducted on 18.01.2017, which revealed that M/s Shyam Trading Company (a proprietorship concern of Ghanshyam Patel) had used its bank account maintained with J & K Bank, Ghaziabad to deposit a cash amount of Rs.30,00,000/- on 12.11.2016. Out of the aforesaid amount, Rs.7,50,000/- were transferred to the bank account of the applicant being maintained with Axis Bank, Delhi through NEFT on 12.11.2016. Ghanshyam Patel denied ownership of the amount deposited in his bank account. After inquiry, the matter was transferred to the Banami Prohibition Unit, Kanpur for initiating proceedings under Benami Act. During further inquiry held by the Benami Prohibition Unit, Kanpur, the applicant admitted on oath that the aforesaid sum of Rs. 7,50,000/- deposited into the bank account of M/s Shyam Trading Company was the applicant’s unaccounted cash, which was deposited during demonetization period and had been transferred to his bank account.
Ghanshyam Patel, proprietor of M/s Ghanshyam Trading Company, also admitted in his statement that the amount of Rs. 7,50,000/- deposited in his bank account in cash was a benami transaction.
5. The Deputy Commissioner of Income Tax/ Initiating Officer, Benami Prohibition Benami Unit, Kanpur filed a complaint dated 25.02.2024 on the basis of the aforesaid facts. The learned IX Additional Session Judge, Lucknow took cognizance of the alleged offence on the same date i.e. 27.02.2024 and summoned the applicant to face the trial.
6. The learned counsel for the applicant has assailed the validity of the summoning order dated 27.02.2024 on the sole ground that the applicant resides at New Delhi, i.e. beyond the territorial jurisdiction of the Court which has passed the summoning order and, therefore, as per the statutory provision contained in Section 202 Cr.P.C., it was mandatory for the Court to have conducted an inquiry before taking cognizance of the offence and summoning the applicant.
7. In support of his contention, the learned counsel for the applicant has relied upon a decisions in Vishwakalyan Multistate Credit Coop.
Society Ltd. v. Oneup Entertainment (P) Ltd., 2023 SCC OnLine SC 1749, a decision rendered by a coordinate Bench of this Court in Azim Premji v. State of U.P., 2024 SCC OnLine All 1956 and a decision rendered by an Hon’ble Single Judge of Calcutta High Court in Divyajot Singh Jendu v. Manikaran Analytics Ltd.: 2022 SCC OnLine Cal 200.
8. Per contra, Sri Neerav Chitravanshi, the learned counsel for the opposite parties has submitted that the Proviso (a) appended to Section 200 Cr.P.C. provides that the Magistrate need not examine the complaint and the witnesses, if a complaint has been made by a public servant. He has relied upon a decision of the Hon’ble Supreme Court in the case of Cheminova India Limited v. State of Punjab: 2021 SCC OnLine SC 573.
9. Before proceeding with the matter, it would be appropriate to have a look to the
