Bombay High Court
R.R. Gavit vs Smt. Sherbanoo Hasan Daya And Another on 1 November, 1985
Equivalent citations: 1986(2)BOMCR293, (1986)55CTR(BOM)427, [1986]161ITR793(BOM), [1986]28TAXMAN349(BOM)
JUDGMENT Kolse Patil, J.
1. On October 19, 1983, the Deputy Director of Inspection. Unit No. II, issued a warrant authorising complainant, R R. Gavit, and another officer to search the residential premises of the accused-respondent No. 1 under section 132(4) of the Income tax Act, 1961 (herein-after for brevity's sake referred to as "the Act"). They were a] so authorised to exercise all other powers and functions under section 132 of the Act and the rules relating thereto. On the same day at 6.30 p.m., they went to the residence of the accused and recorded her statement on oath. Question No. 2 in the statement and the answer given to it by the accused was as follows :
"Qus. No. 2 : Whether you have any bank accounts, bank lockers, fixed deposits, shares either in your name or jointly with any other person ? What are your immovable and movable assets ? Please state in brief ?
Ans. : I have got one savings account bearing a/c. No. 18732 with the Central Bank of India, Kalbadevi Branch, Bombay. There is no locker in my name or in joint name with any bank. So far as I know, I do not have any fixed deposit or shares from companies. As regards immovable propertics I have got only one asset, that is flat at 57, Blue Haven, Mount Pleasant Road, Bombay. As regards movable assets, I own Fiat Car."
2. It was discovered, thereafter, that the accused had two bank lockers (i) bearing No. 574 in the Bank of India, Malabar Hill Branch, and (ii) in the Central Bank of India, Versova Branch. The first locker was in the name of the accused and her daughter, Dilshad, and the second was in the name of the accused and another daughter, Abida Merchant. On November 8, 1983, the accused was further questioned on oath under section 131 of the Act Question No. 3 and the answer given to it was as under :
"Qus. No. 3 : How many bank lockers do you have ?
Ans. : I have only one at Bank of India, Mahalaxmi Branch. It is in the joint name with my daughter, Mrs. Dilshad. It was lately operated by me around 20-25 days back approx. Key remains with me. As on today one note-book (exercise book) is there. It is mine. I am co-holder of a locker in the Central Bank, Versova, with my daughter, Mrs. Dilshad. My name is there for convenience sake and nothing belonging to me is kept there.
Qus. No. 4 : Did you operate your Mahalaxmi Locker after October 19, 1983 ?
Ans. I Yes, I have operated the locker."
3. Therefore, according to the prosecution, the accused intentionally denied the fact of having any locker for the purpose of removing the assets and incriminating documents therefrom. The statement of the accused recorded during the search was in a judicial proceeding within the meaning of section 136 of the Act and, therefore, the accused had committed an of offence under sections 181 and 193 of the Indian Penal Code. She had given false statements which she knew and believed to be false. The complaint was filed by the complainant against the accused under sections 181 and 193 of the Indian Penal Code in the court of the Metropolitan Magistrate, 37th court, Esplanade, Bombay. The learned Metropolitan Magistrate refused to issue process and dismissed the complaint by his order dated January 27, 1984. Challenging the same order, the petitioner filed this Criminal Revision Application.
4. Shri Gumaste, the learned counsel for the petitioner, stated that during the course of the search, the complainant was authorised to examine the accused on oath. According to him, her statement was recorded under section 132(4) of the Act. She intentionally gave false evidence in a judicial proceeding within the meaning of section 136 of the Act. He further submitted that she was legally bound to state the truth before the complainant who was authorised by law to administer the oath and hence the complainant has made out a prima facie case in the complaint. However, the Magistrate refused to issue a process. Shri Gumaste relied on Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose, , where the Supreme Court observed as follows (headnote at page 1430) :
"For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. As stated in sub-section (1) of section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant."
5. He has further relied on Nagawwa v. Veeranna Shivalingappa Konjalgi , where it is observed as under (p. 1951 of AIR) :
"The scope of the inquiry under section 202 of the Code of Criminal Procedure is extremely limited-limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint-(i) on the materials placed by the complainant before the court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. It is not the province of the magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction which is a very limited one. In proceedings under section 202, the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not."
6. He further submitted that the Magistrate at this stage is not supposed to look into the defence of the accused on the merits of the case and, therefore, his order is illegal.
7. On the other hand, Shri Vakil, the learned counsel for the respondent No. 1, submitted that the officer authorised to take search must administer oath and record the statement under section 132(4) of the Act only after the condition laid down in the said section has been fulfilled in order to invoke the power given under that section. On the plain reading of the said section, the authorised officer is empowered to examine on oath during the course of a search only if that person is found to be in possession or control of any books of account, documents, money, bullion, jewellery or other valuable articles or things. The said section further says that the statement by such person during such examination may thereafter be used in any proceeding under the Act. According to Shri Vakil, the complainant was empowered to administer oath to the accused and examine her only in respect of the things found in her possession or control mentioned in the said section. The impugned statement for which she is charged was recorded under section 132(4) of the Act. If we carefully see the statement and the last question in it, it is abundantly clear that this statement was recorded before the search commenced and, therefore, an inference cannot be drawn that the impugned statement was recorded during the course of the search proceedings. He further submitted that the accused in this case is facing criminal proceedings and, therefore, the legal provisions must be very strictly construed. If on the face of the complaint and the documents relied upon the offence is not disclosed, the Magistrate was right in dismissing the case. It was submitted by him that as the things mentioned in the section were not found in the possession or control of the accused the officer who administered the oath and questioned has exceeded his right and, therefore, the impugned statement cannot be the subiect-matter of the charge under section 181 or 193 of the Indian Penal Code. At this stage, Shri Gumaste drew my attention to section 7 of the Oaths Act under which also the requirement is that for administering the oath, the proceeding should be judicial. Hence, while appreciating his submission, the question to be considered is whether the officer was empowered to administer the oath in the present case and whether the proceeding in question was judicial. He supported his contention by relying on Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar, , where the Supreme Court observed as under (headnote at 1113) :
"When a Magistrate directs an inquiry under section 202, Criminal Procedure Code, for ascertaining the truth or falsehood of a complaint and receives a report from the enquiring officer supporting a plea of self-defence made by the person complained against, it is open to him to hold that the plea is correct on the basis of the report and the statements of witnesses recorded by the enquiring officer. It is not obligatory on the Magistrate, as a matter of law, to issue process in such a case and leave the person complained against to establish his plea of self-defence at the trial.
Section 203 makes it clear that the judgment which the Magistrate has to form must be based on the statements of the complainant and his witnesses and the result of the investigation or inquiry. But the judgment which the Magistrate has to form is whether or not there is sufficient ground for proceeding. This does not mean that the Magistrate is bound to accept the result of the inquiry or investigation or that he must accept any plea that is set up on behalf of the person complained against. The Magistrate must apply his judicial mind to the materials on which he has to form his judgment. In arriving at his judgment, he is not fettered in any way except by judicial considerations; he is not bound to accept what the inquiring officer says, nor is he precluded from accepting a plea based on an exception, provided always there are satisfactory and reliable materials on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not. If the Magistrate has not misdirected himself as to the scope of an inquiry under section 202 and has applied his mind judicially to the materials before him, it would be erroneous in law to hold that a plea based on an exception can never be accepted by him in arriving at his judgment. What bearing such a plea has on the case of the complainant and his witnesses and to what extent they are falsified by the evidence of other witnesses-all these are questions which must be answered with reference to the facts of each case. No universal rule can be laid down in respect of such questions."
8. I have given careful thought to the submissions made by Shri Gumaste and I find no force in them. I agree with the principles laid down in the authorities relied on by him. However, the principles laid down in those authorities have no bearing on the issue involved in the present case. On the plain reading of section 132(4) which reads as under :
"132. (4) The authorised officer may, during the course of the search or seizure, examine on oath any person who is found to be in possession or control of any books of account, documents, money, bullion, jewellery or other valuable article or thing and any statement made by such person during such examination may thereafter be used in evidence in any proceedings under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act."
9. I am of the view that the officer was empowered to examine the accused on oath during the course of search only in the event the accused was found in possession or control of the things mentioned in the section. It is not disputed that her impugned statement was recorded at 6.30 p.m., i.e., before the search commenced. Therefore, I am in agreement with Shri Vakil that the complainant has exceeded his authority under the provisions of the said section by putting certain questions to the accused before commencing the search. Moreover, this power of examining her on oath could have been exercised by him within the four corners of section 132(4) and not otherwise. To my mind, the powers conferred by section 132(4) of the Act have been misused in the present case. The power to interrogate on oath conferred by section 132(4) is not for the purposes of general investigation of the assets, but for the limited purpose of seeking explanation or information in respect of the documents, articles or things found during the search. Thus, the authorised officer has a limited power to make enquiries on oath in respect of his findings from the search and he is not authorised to put questions in general. Therefore, the impugned statement is not a statement on oath during the proceedings within the meaning of section 132(4) of the Act.
10. There is also another important point to be noted in connection with the original statement recorded. The caption of the statement reads "on oath solemnly affirmed". Neither of the two has been struck off and there is every possibility of the accused not being examined on oath. There is further no other record to show that an oath was administered to the accused by the complainant. Therefore, it is doubtful whether the impugned statement was at all given by the accused on oath. I have also perused her statement recorded on November 8, 1983, under section 131 of the Act where it is mentioned that the "oath was administered". It must be remembered that in the present case, the accused is being prosecuted for giving a false statement on oath. Hence, it is necessary to prove beyond doubt that the statement was given on oath. On the basis of the record as it stands, it is very difficult for me to draw an inference that the accused has made a false statement on oath. I am, therefore, of the opinion that no prima facie case has been made out against the accused.
11. Hence, the criminal revision application fails and the rule is discharged.