AI Structured Summary
Not yet generated for this judgment
Judgment
Arunachalam, J.—This petition u/s 482, Criminal Procedure Code, has been filed by the petitioner claiming himself to be the Secretary of
the Madras District Social Welfare Association, which is an association founded with the object of purifying public life and also exposing corrupt
elements. This application seeks to implead the petitioner as a party respondent in Criminal Miscellaneous Petition No. 2854 of 1988 pending in
this court. In Criminal Miscellaneous Petition No. 2854 of 1988, the first respondent is the petitioner and the second respondent is the respondent.
The second respondent has filed a complaint against the first respondent before the court of the Additional Chief Metropolitan Magistrate,
Economic offences, Egmore, Madras, alleging that the first respondent who had been granted a loan of Rs. 4,65,000 on April 17, 1986 by the
A.I.A.D.M.K. party and admittedy received by her on April 18, 1986, violated Section 269SS of the Income Tax Act, the contravention of which
she is punishable u/s 276DD of the said Act. The complaint filed in March, 1988, has been taken on file against the first respondent in E.O.C.C.
No. 207 of 1988.
The first respondent, during the end of April, 1988, filed Criminal Miscellaneous Petition No. 2854 of 1988 on the file of this court u/s 482,
Criminal Procedure Code, to call for the records in E.O.C.C. No. 207 of 1988 on the file of the Additional Chief Metropolitan Magistrate,
Egmore, Madras, and to quash the proceedings therein for the reasons stated in the petition. It is also seen from the said petition that, among other
contentions, the constitutional validity of Section 269SS read with Section 276DD of the Act has been challenged as being ultra vires, offending
article 14 of the Constitution of India. On April 29, 1988, this court admitted Criminal Miscellaneous Petition No. 2854 of 1988 and notice
returnable by June 15, 1988, was ordered. In Criminal Miscellaneous Petition No. 2855 of 1988, stay of all further proceedings pending in the trial
court was ordered. In Criminal Miscellaneous Petition No. 2856 of 1988, the appearance of the first respondent before the trial court, pending
disposal of Criminal Miscellaneous No. 2854 of 1988, was also ordered. The petitions were again listed on June 21, 1988, on which date this
court directed posting of these petitions after service on the respondent.
While so, the affidavit of the petitioner details about the first respondent having been adjudicated as an undischarged insolvent on her own
petition by an order dated March 30, 1981, passed by this court, consequent to which all her assets vested with the official assignee of this court.
However, in April, 1986, when she was nominated as a Member of the Tamil Nadu Legislative Council by the Government of Tamil Nadu, it is
stated that the petitioner filed a writ petition questioning the validity of the said nomination. It is also stated in the affidavit that, on the issue of notice
to the first respondent, the first respondent withdrew her nomination resulting in the writ petition becoming infructuous. The further averments in the
affidavit relate to the nomination of the first respondent as a candidate to contest the Tamil Nadu Assembly elections, polling for which was to be
held on January 21, 1989. According to the petitioner, in view of the pendency of E.O.C.C. No. 207 of 1988 on the file of the Additional Chief
Metropolitan Magistrate, Economic Offences, Egmore, Madras, the first respondent cannot represent the Assembly constituency in the Tamil
Nadu Legislature, she having committed an offence under the Income Tax Act. She is also disqualified to contest the election in view of her
subsisting dance contract with the Government of Tamil Nadu. A further statement is made in the affidavit that it was known as to how an
undischarged insolvent suddenly deposited a huge amount the source of which must be enquired into in public interest. After extracting the facts of
the prosecution case in the pending calendar case, it is stated in the affidavit that the advance of such a huge amount to the first respondent by a
political party was only a make-believe affair to cheat the Income Tax Department and the public at large.
In para 4 of this affidavit, it is averred, that, ""while admitting the petition to quash, this honourable court further directed the office to post the
above matter in June, 1988. However, till date, the main criminal miscellaneous petition to quash the proceedings has not yet been listed for final
hearing"". An allegation is made against the second respondent for not having moved this court to have the stay vacated and this deliberate delay on
the part of the second respondent is stated to be a failure to discharge the obligation, necessitating this application being moved in public interest by
the petitioner. The final paragraph in the affidavit states that since the first respondent had ventured to enter public life by filing her nomination for
the Legislative Assembly from No. 133, Bodinayakanur Assembly Constituency, when she is facing a criminal prosecution at the instance of the
Income Tax Department, the petitioner is a necessary and proper party to be impleaded as a respondent in the main criminal miscellaneous
petition. It is also prayed that the stay granted in Criminal Miscellaneous Petition No. 2855 of 1988 and the dispensing with the appearance of the
first respondent ordered in Criminal Miscellaneous Petition No. 2856 of 1988 be vacated.
The first respondent has filed a counter-statement in which it is stated that the petitioner not being a party to the proceeding has no locus standi
to file this petition. The offence for which the first respondent is prosecuted under the Income Tax Act has to be initiated at the instance of the
Commissioner of Income Tax and no complaint can be filed except at his instance. The contents of the petition filed by the petitioner to implead
himself and to vacate the stay granted already by this court reveal that he is not aware of the grounds on which the quashing of the prosecution had
been sought, while the petition for vacating the stay does not contain any ground whatsoever. The challenge to the constitutional validity of Section
269SS read with Section 276DD of the Income Tax Act has been referred to with an averment that this question of law is res integra and is raised
for the first time. It is further averred in the counter-statement that the petitioner has indulged in untrue and frivolous contentions and the allegations
relating to the election process are totally irrelevant. The other details in the affidavit filed by the petitioner which had been released to the press in
advance are stated to be irrelevant for the purpose of this case, the averments themseleves being denied. The nomination for contesting the
assembly election is stated to be valid, since it has been accepted by the Election Commissioner and such decision can be challenged only in an
ultimate election petition by the aggrieved party. The right to file a petition u/s 482, Criminal Procedure Code, in this court cannot be thwarted and
a person who has no locus standi cannot hurl baseless allegations at the respondents. The counter-statement concludes by stating that no public
interest is involved having regard to the fact that the offences under the Income Tax Act are not cognizable and the petition has been filed with a
mala fide motive of gaining publicity and is an abuse of the process of the court. Regarding the prayer for vacating the stay, it is stated in the
counter that it was a matter for the Income Tax Department to decide about having the stay vacated or not.
Mr. S. K. Sundaram, learned counsel appearing for the petitioner, submitted that the petitioner has a right to be impleaded since the cause of the
community deserves equal treatment at the hands of the court in the discharge of its judicial functions. This contention is based on the
pronouncement of the Supreme Court in State of Gujarat Vs. Mohanlal Jitamalji Porwal and Another, , wherein the Supreme Court while dealing
with the scope of Section 391, Criminal Procedure Code, concerning the additional evidence sought to be let in before the High Court to remove a
technical or formal defect which was denied on the ground of lapse of six years, observed as follows State of Gujarat Vs. Mohanlal Jitamalji
Porwal and Another, :
Ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the Public
Prosecutor is also entitled to justice. The cause of the community deserved equal treatment at the hands of the court in the discharge of its judicial
functions. The community or the State is not a persona non grata whose cause may be treated with disdain. The entire community is aggrieved if
the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon
passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of
the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith
of the community in the system of administer justice in an evenhanded manner without fear of criticism from the quarters which view white collar
crimes with a permissive eye unmindful of the damage done to the national economy and national interest. The High Court was, therefore,
altogether unjustified in rejecting the application made by the learned Assistant Public Prosecutor invoking the powers of the court u/s 391 of the
Code of Criminal Procedure.
Further, by placing reliance in Municipal Council, Ratlam Vs. Vardichan and Others, , learned counsel for the petitioner contended that social
justice is due to the people and, therefore, the people must be able to trigger off the jurisdiction vested for their benefit in any public functionary like
a Magistrate as was permissible in that case u/s 133, Criminal Procedure Code. Referring to the decision reported in S.P. Gupta Vs. President of
India and Others, , learned counsel for the petitioner would further contend that the petitioner has locus standi to maintain this petition.
Thiru N. C. Raghavachari, learned counsel appearing for the first respondent, refuting the contentions of learned counsel for the petitioner,
submitted that the petitioner was not an aggrieved person and there is no public interest involved in these proceedings. The Income Tax Act is a
self-contained code and the power to prosecute the offenders has been vested in the Commissioner of Income Tax at whose instance alone the
complaint for an offence for which the first respondent is being prosecuted can be validly maintained. He would refer to Section 279 of the Income
Tax Act, which relates to the prosecution being launched at the instance of the Commissioner taking within its fold Section 276DD of the Act for
the alleged commission of which offence the first respondent is being prosecuted. He would also refer to Section 279(2) of the Act which
preserves the power in the Commissioner to compound the offence either before or after the institution of the proceedings. He further contended
that the constitutional validity of Section 269SS read with Section 276DD has been challenged and the prosecution cannot be launched or
conducted as a public interest litigation in view of the statutory bar. Learned senior counsel would refer to the decisions reported in S. Dyramar v.
State by the Inspector of Police (1985) LW (Crl.) 219 and Saravanabhavanandam v. P. S. S. Murugaiyyan (1986) LW (Crl.) 165 wherein
Sengottuvelan, J., while considering the right of a third party relation of the victim of the offence being impleaded in bail and anticipatory bail
petitions, had observed that there was no provision in the Criminal Procedure Code to implead a third party in a prosecution case. The close
relations to the aggrieved party were entitled only to assist the prosecution case. The close relations of the aggrieved party were entitled only to the
assist the prosecution and cannot be impleaded as a party to the proceedings. The observations of Sengottuvelan J. are also based on the law laid
down by the Supreme Court in A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, , wherein the following observation has been made (at
page 723 of AIR 1984) :
Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statue creating an offence provides
for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision. Punishment of the
offender in the interest of the society being one of the objects behind penal statutes enacted for the larger good of the society, the right to initiate
proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of locus standi unknown to criminal
jurisprudence, save and except specific statutory exceptions.
It is further contended that, apart from the lack of locus standi for the petitioner, there were no bona fides in the petitioner and there were no bona
fides in the petition filed by the petitioner. The question of the petitioner being heard does not arise in view of the specific statutory exception and
since no time limit had been fixed by the court for the disposal of the main petition, the allegation of mala fides cannot be allowed to be made by
the petitioner.
Thiru K. Ramaswamy, learned counsel appearing for the second respondent, submitted that no public interest was involved and the private
complaint filed by the Income Tax Department was compoundable at any stage as rightly pointed our by learned counsel appearing for the first
respondent. He would strenuously contend that the petition for impleading is not maintainable and is bound to be dismissed.
The question that arises for decision is whether Crl. M.P.No. 643 of 1989 is sustainable ?
There is no provision in the Criminal Procedure Code to implead a third party in a prosecution case. In a prosecution initiated by the State,
Section 301, Criminal Procedure Code, provides for any private person instructing a pleader and the pleader so instructed being bound to act
under the directions of the public prosecutor or assistant public prosecutor, as the case may be, and on the permission of the court, submitting
written arguments after the evidence is closed in the case. Thus there is no provision to get a third party impleaded in the criminal proceeding,
though to a limited extent, a third party can be permitted to assist the public prosecutor in the matter of prosecuting the evidence as provided u/s
301, Criminal Procedure Code. However, it is well-known that certain Sections in the Criminal Procedure Code and other enactments regulate the
competence of the court and bars its jurisdiction in certain cases except in compliance with it. Those provisions prohibit cognizance except upon a
complaint made by the person aggrieved or at the instance of a particular authority. Such sections impose a prohibition on the cognizance with an
exception and place a limitation on the general rule that any person can set the criminal law in motion.
The Supreme Court, in Sheonandan Paswan Vs. State of Bihar and Others, , has observed as follows (at p.889) :
It is now settled law that a criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the
purpose of punishment of the offender in the interest of the society. It is for maintaining stability and orderliness in the society that certain acts are
constituted offences and the right is given to any citizen to set the machinery of the criminal law in motion for the purpose of bringing the offender to
book. It is for this reason that in A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, , this court pointed out that ''punishment of the offender
in the interests of the society being one of the objects behind penal statutes enacted for the larger good of the society, the right to initiate
proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of locus standi''. This court observed that
the locus standi of the complainant is a concept foreign to criminal jurisprudence. Now, if any citizen can lodge a first information report or file a
complaint and set the machinery of the criminal law in motion and his locus standi to do so cannot be questioned, we do not see why a citizen who
finds that a prosecution for an offence against the society is being wrongly withdrawn, cannot oppose such withdrawal. If he can be a complainant
for initiation of criminal prosecution, he should equally be entitled to oppose withdrawal of the criminal prosecution which has already being
initiated at his instance. If the offence for which a prosecution is being launched is an offence against the society and not merely an individual wrong,
any member of the society must have locus standi to initiate a prosecution as also to resist withdrawal of such prosecution, if initiated.
A reference has been made in the above case to A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, , wherein the Supreme Court has
observed that the locus standi of the complainant is a concept foreign to criminal jurisprudence save and except where the statue creating an
offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision. It is,
therefore, patent that except in cases of specific statutory exception, strait-jacket formula of locus standi is unknown to criminal jurisprudence. If
there is a right on any person to initiate a criminal prosecution, he should equally be entitled to take part in further proceedings arising out of the
prosecution initiated by him. Section 279 of the Income Tax Act provides for prosecution being launched at the instance of the Commissioner of
Income Tax for the offences specified therein and also bars any person being proceeded against for offences under sections specified therein,
except at the instance of the Commissioner of Income Tax. The first respondent is being prosecuted by the second respondent for an offence
punishable u/s 276DD for failure to comply with the provisions of Section 269SS of the Act, for which a prosecution can be at the instance of the
Commissioner of Income Tax alone and not at the instance of any private party. It is, therefore, obvious that the petitioner will not be competent to
initiate a criminal prosecution against the first respondent and, therefore, as a necessary corollary, he would be equally incompetent to implead
himself in this petition.
The authorities relied upon by Thiru S. K. Sundaram, learned counsel for the petitioner, can now be considered to determine if his proposition
stands supported by the dicta laid down. In State of Gujarat Vs. Mohanlal Jitamalji Porwal and Another, , the point that was considered was the
legitimacy of the High Court''s action in having refused to permit the prosecution to adduce additional evidence on the ground of lapse of six years,
when the provision of Section 391, Criminal Procedure Code, was sought to be invoked. The prosecution was under the Gold (Control) Act as
well as under the Customs Act relating to the seizure of a wrist chain weighing 820 gms. coated with mercury to pass it off as being made of silver.
Additional evidence was sought for to remove the alleged formal defect in the proof of the main master. In that context, the Supreme Court had
made the observations quoted earlier in this order and that can have no relevance in considering the right of the petitioner to be impleaded in the
present proceedings.
In S.P. Gupta Vs. President of India and Others, (judges transfer case), the Supreme Court pointed out, while considering the question of
locus standi, that, as a matter of prudence and not as a rule of law, the court may confine the strategic exercise of jurisdiction to cases where legal
wrong or legal injury is caused to a determinate class or group of persons were the constitutional or legal right of such determinate class or group
of persons is violated and as far as possible, not entertain cases of individual wrong or injury at the instance of a third party. It was further
observed that an effective legal aid organisation could take care of such cases. But, in the instant case, there is a total prohibition for the petitioner
to set the law in motion, Section 279 of the Income Tax Act being an exception to the general rule that any person can set the criminal law in
motion. In S.P. Gupta Vs. President of India and Others, , the Supreme Court had also considered the maintaining of actions for a public wrong or
public injury in cases where the duty which was breached giving rise to injury was owed by the State or public authority not to any specific or
determinate class or group of persons but to the general public. In other words, the duty was one which was not correlative to any individual right.
In that context, it was observed that if such breach of public duty were allowed to go unredressed because there is no one who has received a
specific legal injury or who was entitled to participate in the proceedings pertaining to the decision relating to such public duty, the failure to
perform such public duty would go unchecked and it would promote disrespect for the rule of law. It was also stated in that case that the strict rule
of standing which insists that only the person who has suffered a specific legal injury can maintain an action for judicial redress is relaxed and a
broad rule is evolved which gives a standing to any member of the public who is not a mere busybody or a meddlesome interloper but who has
sufficient interest in the proceedings. This ruling also does not help the petitioner''s case. If initial setting of the law in motion is not possible, the later
participation will equally be barred. In Municipal Council, Ratlam Vs. Vardichan and Others, , the duty of the municipality towards the members of
the public was considered in relation to the invoking of the provisions u/s 133, Criminal Procedure Code, and the right of the local citizens to
initiate action for removal of public nuisance before the competent Magistrate. That was again a case of public injury where there was no bar to
initiate criminal action and the said pronouncement cannot come to the rescue of the petitioner on the facts of this case.
The arguments of learned counsel, Thiru N. C. Raghavachari, appearing for the first respondent that there is no public interest in the
prosecution and that the Income Tax Act is a self-contained code providing for initiation of prosecution in respect of certain offences at the
instance of the Commissioner of Income Tax, will have to be upheld. It is fairly obvious that if the petitioner has no right to set the law in motion, he
can have no locus standi to intervene at this stage, especially when the prosecution has to be at the instance of the Commissioner of Income Tax
and which could not be launched in any other manner, and the offence is also capable of being compounded at any stage, by the Commissioner.
There is no public wrong or public injury involved in this prosecution and the first respondent is entitled to approach this court for quashing of the
proceedings initiated against her, if she felt aggrieved that the prosecution was not maintainable. This court, on a consideration of the material
placed before it, had thought it fit to admit the petition for quashing and directing issue of notice to the second respondent. It will be open to the
second respondent, on entering appearance after service of notice directed by this court, to take such action as may be deemed fit for the earlier
disposal of the main petition. This court has not fixed any time limit for the disposal of the main petition and all that has been ordered is for posting
of the petition for disposal after service. Many of the petitions filed for quashing of the proceedings initiated in the lower courts are pending in this
court and they are taken up for disposal in the usual course unless either party moves by an application praying for the need for an early disposal,
in which event suitable dates are fixed and specific cases are finally disposed of. The submissions of Thiru K. Ramaswamy, learned counsel
appearing for the second respondent, on this legal issue has also to be accepted in view of my earlier reasoning in this order. I am satisfied that
there is no public interest involved in this prosecution.
It is not as though the second respondent had been keeping quiet when violation of the provisions of the Income Tax Act had come to his
notice. A prosecution has been launched in or about March, 1988, before the Additional Chief Metropolitan Magistrate, Economic Offences,
Egmore, Madras, and in the end of April, 1988, this court had taken on file the petition for quashing the proceedings initiated against the first
respondent by the second respondent for consideration as stated earlier. No specific material regarding any mala fide delay has been brought to
my notice by the petitioner in the disposal of the main petition. I am unable to accede to the contention that the second respondent had failed to
discharge his obligation which had constrained this application being moved in public interest by the petitioner.
The grievance of the petitioner about the right or validity of the first respondent having been nominated for representing the Assembly
Constituency in the Tamil Nadu Legislature is beyond the scope of this petition and there is also a constitutional bar to entertain any proceeding
calling in question an election to Parliament or a State Legislature which may have to be initiated by an election to Parliament or a State Legislature
which may have to be initiated by an election petition after the election, in such manner as provided for by the statute. The word ""election"" has been
held to connote the entire procedure to be gone through to return a candidate to the Legislature inclusive of rejection or acceptance of the
nomination paper. These are matters relating to the post-election stage and the sole remedy of an aggrieved party is an election petition. The details
relating to the facts which led to this prosecution and the acceptability thereof may have to be considered at proper stage by the trial court or this
court and they do not require consideration at this stage at the instance of the petitioner whose petition for impleading is not maintainable.
On my reasoning in the light of the authoritative pronouncements aforementioned, the petition for impleading is liable to be dismissed and is,
accordingly, dismissed. In view of my conclusion dismissing the petition for impleading, the petitione for vacating the stay already granted by this
court (petition not yet numbered) is also obviously not maintainable.