Gujarat High Court
Kirtiraj Pankajbhai Sutariya vs State Of Gujarat on 29 October, 2021
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/17573/2021 ORDER DATED: 29/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 17573 of 2021
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KIRTIRAJ PANKAJBHAI SUTARIYA
Versus
STATE OF GUJARAT
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE assisted by MR MAULIK
VAKHARIYA (6628) for the Applicant
MR MITESH AMIN, PUBLIC PROSECUTOR assisted by MR HK PATEL,
APP for the Respondent Nos.1 to 3
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 29/10/2021
ORAL ORDER
1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with file No.CCST /STO MINA RATHOD 2021-22B.2 registered with the office of Chief Commissioner of State Tax, Enforcement, Ahmedabad.
2. The present application along with other group matters were jointly heard and had raised identical issues and were pertaining to investigation arising out of similar facts. Criminal Misc.Application Nos.15507, 16679 and 17231 of 2021 were permitted to be withdrawn as pending applications, complaint came to be registered. The other two applications being Criminal Misc.Application Nos.15509 and 18422 of 2021 came to be allowed on the ground of the applicant being a lady accused and another Page 1 of 19 Downloaded on : Mon Jan 17 05:00:40 IST 2022 R/CR.MA/17573/2021 ORDER DATED: 29/10/2021 being aged person, who was hospitalized at the time of arrest and had continued to be under hospitalization even after arrest. The present application is dealt with on merits.
3. Learned Senior Advocate appearing on behalf of the applicant submits that considering the nature of the offence, the applicant may be enlarged on regular bail by imposing suitable conditions. At the outset, it is submitted that the case of the present applicant deserves consideration considering the maximum sentence for the offence being 5 years, the applicant had cooperated with the investigation and that the nature of offence under the GST Act is such which can be treated to be compoundable.
3.1 Learned Senior Advocate for the applicant submitted that even from the investigation done thus far, role of the applicant is limited to the extent of following instructions of co-accused persons for which he was receiving some money and the applicant has nothing to do with issuance of invoices and consequential claim of Input Tax Credit (ITC).
3.2 It is also submitted that the basis for arresting the applicant is only statements co-accused persons. At the best, the applicant can be treated to be an abettor and for abettor, the offence which is attracted is under Section 132(1)(l) of the GST Act, which is bailable offence and hence also, the applicant is required Page 2 of 19 Downloaded on : Mon Jan 17 05:00:40 IST 2022 R/CR.MA/17573/2021 ORDER DATED: 29/10/2021 to be enlarged on regular bail.
3.3 It is submitted that the investigation is virtually over, which is based on documents and data, which is already in custody of the investigating agency and therefore, now presence of the applicant will not be necessary.
3.4 Learned Senior Advocate for the applicant vehemently argued on the point of unauthorized arrest in view of the fact that the delegation of power of arrest of the arresting authority, viz. Sales Tax Officer was by in-charge Additional Commissioner, who was as such holding the post of Joint Commissioner. It is the case of the applicant that it is upon the satisfaction of the Commissioner, who has reasons to believe that a person has committed offence, that arrest can be made. Learned Senior Advocate for the applicant drew attention of this Court to Annexure-B, which is authorisation dated 12.08.2021 to indicate that the authorization was given by Additional Commissioner of State Tax Enforcement, Gujarat State to State Tax Officer, Flying Squad Unit-15, Ahmedabad to arrest the present applicant, but the Additional Commissioner named in the authorization was only an in-charge Additional Commissioner and therefore, there was no satisfaction of a Commissioner or Additional Commissioner to arrive at reasons to believe that the applicant has committed offence under the provisions of the GST Act and therefore, arrest itself is required to be declared as illegal.
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4. As against this, learned Public Prosecutor appearing on behalf of the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. It is submitted that the offence has taken place were lead is generated about Madhav Copper Limited (GSTIN: 24AAICM2859A1ZP) when one vehicle carrying invoice of the party, namely, Shyam Metal (GSTIN:
24EEEPR2792P1ZP) was intercepted which carried goods from Maharashtra to Gujarat. It is noteworthy that the owner of such vehicle is Madhav Copper Ltd. When return based analysis and discreet inquiry is made, it primarily appears that the party is fictitious one hence further investigation is carried out wherein it is noticed that this party is showing majority of its outward supply (sale) of goods to Madhav Copper Limited (GSTIN:
24AAICM2859A1ZP) which leads to further investigation in the case of the company. On the basis of this clue, further discreet check is performed on all the purchases of Madhav Copper Limited wherein it was found that the company has shown voluminous purchase transactions from fictitious entities. When further inquiry is made, it is noticed that it is one of the largest beneficiaries of ineligible ITC of the fictitious entities operated by Mahamedabbas Shabbirali Savjani (alias Mahamed Tata) group. Master mind, Mahamedabbas Shabbirali Savjani (alias Mahamed Tata), is on radar with SGST Department, Gujarat for operating fake billing scam to defraud government revenues of crores of rupees and Page 4 of 19 Downloaded on : Mon Jan 17 05:00:40 IST 2022 R/CR.MA/17573/2021 ORDER DATED: 29/10/2021 investigation was already ongoing to apprehend him but he is absconding at present. It is feared that he may go out of the country to avoid investigation, hence Look Out Circular is issued against him and as he had dishonored summon issued by Investigating officer, complaint u/s 174 of Indian Penal Code, 1860 is also lodged before Hon'ble Additional Chief Metropolitan Magistrate Court, Ahmedabad.
4.1 It is submitted that the investigation involves gathering of huge data and analyzing the same and therefore, investigation is complex which would require assistance of experts in the field. In fact, the data gathered over the period of investigation discloses modus and during investigation, if is found that the company has obtained fake purchase invoices to reduce output tax liability by taking ineligible input tax credit and then settled it from output tax liability. This scam is executed by top management of the company by showing purchases on the strength of fake invoices from fictitious entities. Payment is made through banking channels but same is routed back to the company in the mode of unaccounted cash.
4.2 Learned Public Prosecutor also drew attention of this Court to various communications which are made on "Whats App", which would indicate nexus between co-accused persons inter se. It is submitted that during the course of investigation, "Whats App"
chat between the applicant and other co-accused clearly discloses Page 5 of 19 Downloaded on : Mon Jan 17 05:00:40 IST 2022 R/CR.MA/17573/2021 ORDER DATED: 29/10/2021 the role played by the applicant for procuring the documents and fabricated illegal entities and then undertaking transactions on such fake and fabricated entities, including banking transactions. This "Whats App" transaction which is part of record is to the proximate period during which this scam was being operated. The other documents which are seized from the residence of the applicant consist of two rubber seal stamps of a company which is fake company, cheques and PAN cards of such company, also cheque books of bogus firms and bogus individuals and bank pay-in slip. The investigation of the mobile of the applicant also indicates use of such mobile number for obtaining GST registration and receiving OTPs for the purpose of transactions in GST. 4.3 Learned Public Prosecutor also submitted that the investigation carried thus far indicates prima facie involvement of the applicant and therefore, complaint is also registered. However, owing to complexity of the investigation, the investigation is still pending and the some of the key accused persons are yet to be apprehended.
5. Learned Senior Advocate for the applicant in rejoinder submitted that the applicant has a right for default bail and when learned Public Prosecutor is confirming that the investigation is still going on, to frustrate the right of the applicant of default bail, a half-backed complaint is registered.
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6. Having considered the rival submissions of learned Advocates for the parties and having perused documents on record, it appears that the applicant was arrested on 12.08.2021 and was remanded to 6 day custody for investigation. In the meantime, the present application came to be filed and pending application, complaint came to be filed on 08.10.2021. Initial investigation on the basis of arrest memo of the accused discloses 12 fake and fictitious firms with which the applicant was concerned, whereas complaint filed shows 25 fictitious firms. From the investigation case papers, it appears that a scandal was unearthed upon systematic analysis of e-way bill reports on the basis of Returns analysis and ground based intelligence, it came to the notice to the Department that person namely, Kirtiraj Pankajbhai Sutariya (alias Lala), the applicant and others, are indulging into activity of forming fictitious entities to pass Ineligible input tax credit (ITC) to beneficiaries. His name is highlighted during search proceedings conducted against Gurukrupa Traders (GSTIN:
24DDNPR1191A1ZO), Alfa Enterprise (GSTIN: 24ABJPZ4357K1Z0) and analysis of extracted data of mobile phone of Minaben Rangshinh Rathod (Zala). Search proceeding against Gurykrupa Traders (GSTIN: 24DDNPR1191A1ZO) was conducted at the registered placz of business (D/2/504, Prathma residency, Behind Nirma University, Ahmedabad) on 02/05/2019. That place of business was found closed. Firm is proprietorship concern registered in the name of Amarsinh Dipsinh Rathod. Having Page 7 of 19 Downloaded on : Mon Jan 17 05:00:40 IST 2022 R/CR.MA/17573/2021 ORDER DATED: 29/10/2021 inquired with the chairman of the society for which registered business place is shown, it was stated that no NOC was issued by the society for any firm to do business and chairman is not knowing the person in whose name firm is registered i.e. Amarsinh Dipsinh Rathod. It revealed that owner ofthe premise, Shri Sashank Chaturvedi, has rented the premise to Minaben Rangsinh Rathod (Zala), Later, Amarsinh Dipsinh Rathod had submitted affidavit to the Department wherein he had stated that he had given his documents to Minaben Rangsinh Rathod (Zala). His statement was also recorded u/s 70 of Gujarat Goods and Services Tax Act, 2017 wherein he has stated that he is doing labour work In Vadilal Ice cream factory and also doing farming activity. He had given his documents to Minaben Rangsinh Rathod (Zala) for loan purpose.
Then after, search was conducted at residence place of Minaben Rangshinh Rathod (Zala). 8 debit cards were found from her place. Her statement was also recorded u/s 70 of the Act. In her statement, she had stated that she was giving these documents to Afjal Savjani and other persons to obtain GST registration numbers. She had stated that she had collected documents from 32 persons which were given to Afjal Savjani (Mo.N0.9712066066), Afzal Ghori and other persons, Further to state that, 24 firms were identified till date which were formed by applicant, the applicant Afjal Savjani, Minaben Rangshinh Rathod (Zala) and other persons by misusing documents of the persons of no means. Further investigation in respect of 24 such firms are ongoing and inquiry in Page 8 of 19 Downloaded on : Mon Jan 17 05:00:40 IST 2022 R/CR.MA/17573/2021 ORDER DATED: 29/10/2021 respect of whether GSTIN is obtained or not by misusing the documents obtained in rest 8 cases out of 32 cases (persons) are also under progress. During further investigation of debit cards found, it is found that some of the firms are formed in the name of the person in whose name debit card is issued. Search proceedings were also conducted in firms found through debit cards. Most of the persons in whose names firms are shown to be registered had recorded in their statements that they had given documents to Minaben Rangshinh Rathod (Zala) / the applicant. Minaben Rangshinh Rathod (Zala) mobile data was extracted which was analyzed subsequently. It is noticed during the analysis of this data that the applicant (Mo.N0.9724323910) who is in her contact list had sent her contact number of Afzal "Shorl and Nevil Shukla. These persons were kingpins who had operated some fictitious firms and arrested by CGST Authority in the past. Both Minaben Rangshinh Rathod (Zala) and Afjal Sadikali Savjani were arrested by the Department.
7. Search proceeding was also conducted against Alfa Enterprise (GSTIN:24ABJPZZ.357K1Z0) at its registered place of business (Shop No.10, Dharti Silver Gandhinagar, Zundal-382421) on 02/05/19. At that place, clinic is found and owner of the premise was unaware of the firm or the owner of the firm. Firm is proprietorship firm registered in the name of Nitaben Rajeshsingh Zala. When search team visited the residence place of the owner, Page 9 of 19 Downloaded on : Mon Jan 17 05:00:40 IST 2022 R/CR.MA/17573/2021 ORDER DATED: 29/10/2021 she was available att hat place. She had been asked about the firm and its business for which she replied that she was unaware about it. Her statement was recorded u/s 70 of the Act wherein she had stated that she had given the documents for certain government loan purpose to Minaben Rangshinh Rathod (Zala) and the applicant. Search proceeding was conducted against the applicant on dated 03/08/2019 at his residentlal place (A-404, Madhuram Flora, IOC road, Chandkheda, Ahmedabad). Atthat place, blank cheque books of Alfa Enterprise (Bank A/C No: 20000722811), Pujan Building Materials, Lalit Traders were found. Copy of PAN card of Nilamben Amarsinh Rathod (PAN: DHCPRA386E) who is found to be the registered owner of fictitious entity Om traders was also found. The applicant was not found at that place. He was summoned by the Investigating Officer. He was appeared before the Authority. He had recorded his statement u/s 70 ofthe Act wherein he stated that Mo.N0.9724323910 did belong to him and OTPs' of GST portal of some firms which are found to be fictitious during the investigation did come on his mobile number which were sent by him to Afjal Sadikali Savjani (alias Appu) or Minaben Rangshinh Rathod (Zala). He has also stated that he had handled banking transactions of some of the firms which were found to be fictitious during investigation. During the interrogation of Afjal Sadikali Savjani before arrest and during remand period after arrest, his statement was recorded u/s 70 of the Act. In his statement, he has also stated that Lalabhai means Kirtiraj Page 10 of 19 Downloaded on : Mon Jan 17 05:00:40 IST 2022 R/CR.MA/17573/2021 ORDER DATED: 29/10/2021 Pankajbhai Sutariya-the applicant has opened the bank account of Gurukrupa Traders (GSTIN: 24DDNPR1191A1ZO) in Equitas bank. He has also stated that Laiabhai had given blanked signed cheque book ofthis firm to him. Afjal Sadikali Savjani has also stated that he was also giving fixed amount to the applicant on monthly basis. Afjal Sadikali Savjani has also stated that the applicant has taken GST registration of Gurukrupa Traders and other five fictitious entities and then given these registration numbers to him. So, this clearly indicates that the applicant is one of the main persons and contacting link between Minaben Rangshinh Rathod (Zala) and Afjal Savjani and other master minds who have operated various fictitious firms. This new findings have made it inevitable to conduct search at the place of applicant again. So, search was conducted at his known residential place (A-404, Madhuram Flora, IOC road, Chandkheda, Ahmedabad) on 12/08/2021. He was not available at that place but his parents and brother Is residing there. During search proceeding, one Honda Activa (GJO1- EW8554), which is owned by the applicant, parked in Parking area of flat Is found. When seat dicky ofthe vehicle was searched, one A4 size Paper Is found which contain details of some firms, which appears to be fictitious, and amount against each firm is written which is duly seized. Family members of the applicant has given another address (B-705, Sun Height, In front of Dwarkesh Heavens, Sneh Plaza Road, Chandkheda, Anmedabad) where he is residing at present. Hence, search is conducted at that place. The applicant is Page 11 of 19 Downloaded on : Mon Jan 17 05:00:40 IST 2022 R/CR.MA/17573/2021 ORDER DATED: 29/10/2021 available at that place. During search proceeding, cash of INR 1,49,000/-, two keys of vehicles were found. Having inquired about it, the applicant had stated that one key is of Hyundai I 20 (GJO1WC-0181) which belongs to his friend Pujansinh Zala (son of Minaben Rangshinh | Rathod (Zala)).and another key is of Honda Activa (GJO1-NV-4633). He had stated that he is using his friend's car from last 20 days. When car is searched, 16 cheque books two rubber stamps (Alfa Enterprise and Laxmi Enterprise) and various other incriminating document are found. So, facts emerged from the investigation conducted so far has clearly indicated that the applicant has not only obtained GST registration numbers of some of the fictitious firms but also handled many banking transactions of the firms. These clearly prove that the applicant had actively participated in forming fictitious entities and through which fake sale invoices are issued to pass ineligible input tax credit to beneficiaries. From the complaint that is now filed, total scam of ITC goes to astronomical figure of Rs.109.86 crores.
8. From the investigation done, role and the evidence appearing against the present applicant is that Afzal Sadikali Savjani has stated in his statement that the appicant has opened bank account of M/s. Gurukrupa traders(GSTIN:
24DDNPR11914120) in Equitas bank. He has also stated that Lalabhai had given him blank cheque-book of this firm containing signatures. He was giving fixed amount to the applicant on monthly Page 12 of 19 Downloaded on : Mon Jan 17 05:00:40 IST 2022 R/CR.MA/17573/2021 ORDER DATED: 29/10/2021 basis. The accused-applicant Kirtiraj Pankajbhai Sutariya (@ Lalabhai) had obtained GST Registration numbers of these bogus firms: Gurukrupa traders, Mukesh traders, Alpha enterprise, Shreeji enterprise and Jashvant enterprise which clearly indicates that the accused-applicant Kirtiraj Pankajbhai Sutariya (@ Lalabhai) is involved in the activity of bogus billing. Investigation was done at the residence of the accused-applicant Kirtiraj Pankajbhai Sutariya (@ Lalabhai)- A-404, Madhuram flora, IOC road, Chandkheda, Ahmedabad, on 12/08/2021. The accused was not present but his parents and brother were residing there. During investigation, one Honda Activa (GJ 01 EW 8554), owned by the applicant was found parked in the parking area of that flat. An A4 size paper was found while checking this vehicle. Details of certain firms have been found in the same. These Firms appeared to be bogus and amount is written against each firm. The same has been seized by the Investigating Officer. The second address of the accused-applicant Kirtiraj Pankajbhai Sutariya alias Lalabhai given by the family members of the accused was B/705, Sun Heights, Opposite of Dwarkesh Heaven, Sneh Plaza Road, Chandkheda, Ahmedabad, which is the current place of residence of the accused. Upon searching there, the accused-applicant-Kirtiraj Pankajbhai Sutariya alias Lalabhai was found there. At the time of the search, Rs.1,49,000/- in cash and keys of two vehicles were found at his place of residence. Upon inquiring about the same, the accused - applicant Kirtiraj Pankajbhai Sutariya alias Lalabhai stated that, Page 13 of 19 Downloaded on : Mon Jan 17 05:00:40 IST 2022 R/CR.MA/17573/2021 ORDER DATED: 29/10/2021 the amount found at his residence was given by his father in law. When, statement of the father in law of the accused-applicant Kirtiraj Pankajbhai Sutariya alias Lalabhai was recorded as per section 70 of the G.S.T. Act, wherein he has stated that, he never gave cash to Kirtiraj. Upon inquiring about the keys found during the investigation, he stated that, one key is of Hyundai i20 (GJ01WC0181) which belongs to his friend Poojansinh Zala ( son of Minaben Rangsinh Rathod(Zala) and the other key is of Honda Activa (GJ01NV4633). The accused stated that, he has been using the car of his friend since last 20 days. Below documents and articles have been found in the inspection of this car and the same were seized.
9. Insofar as argument regarding lack of power to arrest, it would be pertinent to observe that Section 69 provides for power to arrest, where the Commissioner has reasons to believe that a person has committed any offence specified under relevant clauses of Section 132. The Commissioner of State Tax has issued notification in exercise of powers under Section 5(3), which provides that the Commissioner, may subject to conditions and limitations, delegate powers to any other officer who is subordinate to him. The "Officer" under the Act is defiled under Section 3, which includes (a) Principal Chief Commissioners of Central Tax or Principal Directors General of Central Tax, (b) Chief Commissioners of Central Tax or Directors General of Central Tax Page 14 of 19 Downloaded on : Mon Jan 17 05:00:40 IST 2022 R/CR.MA/17573/2021 ORDER DATED: 29/10/2021
(c) Principal Commissioners of Central Tax or Principal Additional Directors General of Central Tax, (d) Commissioners of Central Tax or Additional Directors General of Central Tax, (e) Additional Commissioners of Central Tax or Additional Directors of Central Tax, (f) Joint Commissioners of Central Tax or Joint Directors of Central Tax, (g) Deputy Commissioners of Central Tax or Deputy Directors of Central Tax, (h) Assistant Commissioners of Central Tax or Assistant Directors of Central Tax and (i) any other class of officers as it may deem fit.
10. The authorization is dated 12.08.2021 issued by one Mr.M.S.Pathan, Additional Commissioner of State Tax Enforcement, Gujarat State, who has authorized the State Tax Officer Shri P.D.Varli of Flying Squad Unit-15, Ahmedabad to arrest the applicant. The case of the applicant to contend illegal arrest is that Mr.M.S.Pathan, who has signed as an Additional Commissioner of State Tax, was, at the relevant time, i.e. on 12.08.2021 was not the Additional Commissioner, but was Joint Commissioner and was In-charge Additional Commissioner. Considering the provisions of Section 5(3) where the Commissioner of State Tax can authorize an officer who is subordinate to him and delegate his powers. Section 3 of the Act specifies Joint Commissioner of the State Tax also to be an officer who can be treated as subordinate to the Commissioner of State Tax and therefore, even if Mr.M.S.Pathan, who was in the post of Joint Page 15 of 19 Downloaded on : Mon Jan 17 05:00:40 IST 2022 R/CR.MA/17573/2021 ORDER DATED: 29/10/2021 Commissioner, cannot be said to be incompetent to be delegated his powers of the Commissioner as provided under notification dated 05.07.2017. Moreover, where the officer of the level of Joint Commissioner is given charge of Additional Commissioner then all the functions of the Chief Commissioner in his capacity as In- charge Additional Commissioner will have to be treated as the powers exercised by the Additional Commissioner. Therefore, this ground cannot be taken into consideration to treat the arrest of the applicant as illegal, this entitling the applicant to be released on regular bail.
11. It is brought to the notice of the Court that the Division Bench of this Court by judgment and order dated 16.12.2019 in case of Deep Suresh Gadhecha Vs. State of Gujarat & Ors. in Special Criminal Application No.10436 of 2019 has considered the issue under Section 69. However, it is also reported that the Apex Court by order dated 10.02.2020 in Special Leave to Appeal (Criminal) No.984 of 2020 has stayed the operation of the aforesaid decision.
12. Perusal of the case papers would indicate that the facts of the case and evidence on record is sufficient to prima facie conclude that the offence under the GST Act has taken place and the applicant has played the role in such offence. The Apex Court in case of State of Jammu & Kashmir vs. Saleem Ur Rehman, reported in 2021(0) AIJEL-SC 67963 was considering the case Page 16 of 19 Downloaded on : Mon Jan 17 05:00:40 IST 2022 R/CR.MA/17573/2021 ORDER DATED: 29/10/2021 where similar issue of investigation without authorization under the provisions of the Prevention of Corruption Act was being considered. While referring to Section 5(1)(d) read with Section 5(2) of the J&K PC Act, 2006 viz-a-viz Section 120B of the Ranveer Penal Code, which is identical to the provisions of the Prevention of Corruption Act, the Apex Court has examined whether Section 3 of the Prevention of Corruption Act is a mandatory provision and its non-adherence vitiates the investigation. The Apex Court has held in para-8.6 as under:-
8.6 In the present case also, it cannot be said that there was any non- application of mind on the part of the Senior Superintendent of Police authorising the inspector Nisar Hussain to enquire into the FIR for the offences under Section5(1)(d) r/w 5(2) of the J&K PC Act, 2006 and 120-B of the Ranbir Penal Code. It is required to be noted that Inspector Nisar Hussain who was authorised to investigate the FIR for the aforesaid offences was also authorised to arrest the accused persons whenever and wherever necessary. It is also required to be noted that in the said authorisation it has been specifically mentioned that he will conduct the investigation of the case under the supervision of the Superintendent of Police (BKB). Therefore, all precautions are taken by the Senior Superintendent of Police authorising the Inspector Nisar Hussain to investigate the FIR for the offences under the J&K PC Act, 2006.
Even otherwise, it is required to be noted that on a plain reading of the second proviso to Section 3, only two requirements are required to be satisfied, namely, (i) authorisation in writing by an officer of the Vigilance Organisation not below the rank of Assistant Superintendent of Police to an officer of not below the rank of Sub-Inspector of Police to investigate such offences; and (ii) such officer authorised may investigate the offences so specified in the order of authorisation. Therefore, as such, there is no requirement of giving either special reasons or there is no requirement to mention reasons. What is required to be considered is whether there is an application of mind with respect to offences and the relevant provisions with respect to authorisation. Considering the authorisation reproduced Page 17 of 19 Downloaded on : Mon Jan 17 05:00:40 IST 2022 R/CR.MA/17573/2021 ORDER DATED: 29/10/2021 hereinabove, it cannot be said that such authorisation authorising Inspector Nisar Hussain to investigate the FIR for the offences under Section 5(1)(d) r/w 5(2) of the J&K PC Act, 2006 and 120B of the RPC can be said to be vitiated and/or can be said to be void which warrants quashing of the entire criminal proceedings including the FIR. Therefore, as such, the High Court has committed a grave error in quashing the entire criminal proceedings holding that authorisation in favour of Inspector Nisar Hussain was bad in law, relying upon the observations made by this Court in the case of Bhajan Lal (supra), which has been subsequently explained by this court in the case of Ram Singh (supra). We are of the opinion that in the facts and circumstances of the case and considering the authorisation read with the second proviso to Section 3, authorisation cannot be said to be illegal and/or invalid." 12.1 The Court also draws support from the decision in case of H.N.Rishbud Vs. State of Delhi, reported in AIR 1955 SC 196, where the Apex Court has held as under:-
"A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 CrPC as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the court to take cognizance. Section 190 CrPC is one out of a group of sections under the heading 'Conditions requisite for initiation of proceedings'. The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e., Sections 193 to 199. These latter sections regulate the competence of the court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537 CrPC which is in the following terms is attracted: 'Subject to the provisions hereinbefore Page 18 of 19 Downloaded on : Mon Jan 17 05:00:40 IST 2022 R/CR.MA/17573/2021 ORDER DATED: 29/10/2021 contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice.' If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial is well settled as appears from the cases in -- 'Parbhu v. Emperor [AIR 1944 PC 73] and--'Lumbhardar Zutshi v. R. [AIR 1950 PC 26].'
13. In view of the aforesaid, no case is made out to exercise discretion in favour of the applicant. The application deserves to be and is hereby dismissed. Rule is discharged.
(A.Y. KOGJE, J) SHITOLE Page 19 of 19 Downloaded on : Mon Jan 17 05:00:40 IST 2022