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Judgment
J.D. Kapoor, J.
Exemption allowed subject to all just exceptions.
The quashing of criminal complaint u/s 276AB of the Income Tax Act, 1961, is being sought on the ground that the petitioners were not liable to comply with the provisions of section 269UC of the Act and the complainant was also not competent to file the complaint. Thus in the perception of the petitioners, the summoning order is itself bad. The remedy at first instance available to the petitioners is by way of recalling of the summoning order and dropping of the proceedings as they are entitled to such relief even if the process of summons has been issued against them in the light of the following view taken by the Supreme Court in K.M. Mathew Vs. State of Kerala and another, :
"It is open to the accused to plead before the magistrate that the process against him ought not to have been issued. The magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused."
The petition is disposed of with a direction to the learned trial court to decide within one month the appropriate application which they propose to move within one month and till the said application is decided, the personal appearance of the petitioners shall be exempted.
dusty.