Delhi District Court
Sanjay Bhandari vs Income Tax Office on 23 October, 2019
IN THE COURT OF SH. SATISH KUMAR,
ADDITIONAL SESSIONS JUDGE SPECIAL FTC - 2 (CENTRAL)
TIS HAZARI COURTS: DELHI.
Case Number. 470/2019
Assigned to Sessions. 01.08.2019
Arguments heard on. 23.10.2019
Date of Order/Judgment. 23.10.2019
Decision Dismissed.
IN THE MATTER OF :
Sanjay Bhandari
s/o Late Shri R.K. Bhandari,
aged about 58 years
r/o B217, Greater KailashI,
New Delhi110048.
(presently in United Kingdom) ...........Revisionist
Versus
Income Tax Office
Through Sh. Tarun Kumar,
Additional Director of Income Tax,
(Investigation), Unit6(2), Investigation Directorate
Income Tax Department, New Delhi. ......Respondent
Appearance : Sh. Satish Tamta, Sr. Advocate, Ld. Counsel for applicant/revisionist.
Sh. Anish Dhingra, ld. Counsel for Income Tax.
ORDER ON REVISION PETITION:
1. The present revision petition under section 397 of the Criminal Procedure Code is filed against the order dated 25.01.2019 passed by Ld. ACMM, Tis Hazari Courts, Delhi thereby Ld. ACMM, has issued Non Bailable Warrants against the revisionist.
Criminal Revision No. 470/2019 Sanjay Bhandari Vs. Income Tax 1/7
2. Brief facts of the case are that the Respondent Income Tax Department had filed Criminal Complaint No.7697/2018 before the Court of Ld. ACMM alleging to have been committed an offence by applicant/Revisionist under Section 277 of the Income Tax Act, which was registered on 24.03.2018. It is further stated that the summons were returned unserved on the address given in the Complaint as evident from the very first line of the impugned order dtd. 25.01.2019 as the revisionist does not reside at the address given by the complainant in the complaint and has been living abroad for over two years now. Feeling aggrieved by the impugned order, the present revision petition is filed by the revisionist on the following grounds that :
i. That, Ld. ACMM vide impugned order dtd. 25.01.2019 has issued Non Bailable Warrant against the Revisionist without even considering the facts and circumstances of the present case and the procedure laid down in the Code of Criminal Procedure, 1973 and Ld. ACMM failed to even consider that the summons have not been duly served upon the Revisionist and therefore, there is no basis whatsoever for the issuance of the Non Bailable Warrants in the present case;
ii. That, the Hon'ble Court in the impugned order has clearly observed that the Revisionist herein is in London, United Kingdom. Given that the Hon'ble Court is fully aware of this information, summons could not have been served at the address given in India in the Complaint as the Hon'ble Court and even the complainant is aware of the fact that the revisionist is not residing at the said address;
Criminal Revision No. 470/2019
Sanjay Bhandari Vs. Income Tax 2/7
iii. That, in CC No.7697/2018, it has been noted in the order dtd.
20.11.2018 that the accused is not residing in India and is presently in the United Kingdom and since his passport has been impounded, he cannot travel to India. Therefore, even at the time of filing of the present case before this Hon'ble Court it was fully in the knowledge of the Complainant Income Tax Department and also of the Hon'ble Court that the petitioner herein is not a resident in India and therefore, cannot be served at the address given in the Complaint.
iv. That, in support of his arguments, Ld. Counsel for revisionist has relied upon the judgment of Hon'ble Supreme Court in case titled as "Inder Mohan Goswami and Ors Vs. State of Uttaranchal and Ors" wherein it has held that :
"48. The issuance of nonbailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing nonbailable warrants.
49. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilized society. Sometimes in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the nonbailable warrants should be issued.
51. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court's proceeding intentionally, the process of issuance of the nonbailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing nonbailable warrants."
Criminal Revision No. 470/2019 Sanjay Bhandari Vs. Income Tax 3/7
3. That, on the aforesaid grounds, ld. Counsel for revisionist make a submission that revision may kindly be admitted and impugned order dtd. 25.01.2019 may kindly be set aside.
4. Per contra, Ld. Counsel for respondent has argued that there is no illegality and irregularity in the impugned order passed by the ld. Trial Court and make a submission that revision may kindly be dismissed. Heard.
5. Having heard the submissions made by ld. Counsel for the applicant/revisionist as well as ld. Counsel for respondent and after gone through the impugned order passed by the Ld. Trial court, this court is of the considered view that the present revision petition has been filed aggrieved against the impugned order dtd. 25.01.2019 and submissions made by ld. Counsel for applicant/Revisionist are unsustainable in the eyes of law inasmuch as he has filed revision petition in which summons in complaint case was issued to the applicant/Revisionist at Delhi address i.e. B217, Greater KailashI, New Delhi and the applicant/accused has himself has admitted that he is not residing at the given address, if the person is not residing at the given address and the summons/bailable warrant has been issued on the said address then the same cannot be served upon applicant/Revisionist.
6. That, the arguments of ld. Counsel for the applicant/revisionist that the Ld. Trial court has to issue bailable warrant and issuance of NBW by the Ld. Trial court are not justified in any manner is also unsustainable in the eyes of law on the ground that if the same person is not residing at the given Criminal Revision No. 470/2019 Sanjay Bhandari Vs. Income Tax 4/7 address how bailable warrant could be even executed on the same address.
7. It is worth mentioning that the applicant/revisionist has not approached to this court with clean hands inasmuch as affidavit filed with the present revision petition of the applicant/Revisionist was attested in London and the said affidavit only reveal the Delhi address of the applicant/Revisionist and the same is B217, Greater Kailash I, New Delhi and the applicant/revisionist has not mentioned the address of the applicant/revisionist of London, United Kingdom and it appears that the applicant/revisionist intentionally and deliberately does not want to appear in the court after service of the summons of the complaint case and intentionally and deliberately avoiding the process issued by the ld. Trial court in the complaint case in which the allegation against the applicant/accused are of very serious nature and it also appears that intentionally and deliberately applicant/Revisionist has not mentioned his address of London, U.K. in his affidavit, filed with the Revision Petition.
8. That, Ld. counsel for the applicant/Revisionist had relied upon the case law in "Inder Mohan Goswami and Ors. Vs. State of Uttaranchal and Ors. in criminal appeal no.1392 of 2007 arising of SLP No.3658/2004 decided by Hon'ble Supreme Court on 09.10.2007 and has submitted that the order passed by ld. Trial court is unjustified and same is without application of mind.
9. The fact as narrated in the citation as relied upon by the counsel for applicant/Revisionist as well as the facts mentioned in the present Criminal Revision No. 470/2019 Sanjay Bhandari Vs. Income Tax 5/7 complaint/revision petition as well as in impugned order, altogether different on the ground that the applicant/Revisionist is facing prosecution under the Income Tax Act and as per guidelines of Ministry of External Affairs, the Extradition proceedings has already been initiated against the applicant/revisionist and the impugned order passed by ld. Trial court dtd. 25.01.2019 whereby open dated non bailable warrant has been issued against the applicant/Revisionist is completely justified and in accordance with law and there is no illegality or irregularity in the impugned order passed by Ld. Trial Court.
10. It is pertinent to mention, so far as the impugned order dtd. 02.07.2019 issuing open dated nonbailable warrant against the applicant/revisionist named in the complaint case concerned, revision against that order is not maintainable inasmuch as issuance of nonbailable warrant do not decide or touch the important rights or the liabilities of the parties. Any order which substantially effects the rights of the accused, or decides certain rights of the parties only then revision petition is maintainable.
That issuance of nonbailable warrant against the accused comes within the category "interlocutory order" within the meaning of section 397(2) of Cr.P.C. and against the said order which is purely interlocutory order, revision petition is not maintainable. Therefore, the present revision petition is hereby dismissed.
11. The stay of proceedings of the Ld. Trial court granted by this court vide order dtd. 01.08.2019 is hereby vacated and Ld. Trial court is directed to proceed further in accordance with law.
Criminal Revision No. 470/2019 Sanjay Bhandari Vs. Income Tax 6/7
12. Copy of this order be sent to the Ld. Trial Court. Parties are directed to appear before the court concerned of Ld. ACMM on 31.10.2019 at 10:00 a.m. PRONOUNCED IN THE OPEN COURT ON THIS 23.10.2019.
(SATISH KUMAR) ASJ2(CENTRAL), TIS HAZARI COURTS, DELHI.
Criminal Revision No. 470/2019
Sanjay Bhandari Vs. Income Tax 7/7