Harak Chand & Ors. vs Himmat Mal Gandhi & Anr

This appeal has been filed against the judgment of the High Court dated 05.05.2006 in SB Criminal Revision Petition No. 1/1993, by which the High Court has allowed the Criminal Revision and set aside the order of the Additional Sessions Judge No.2, Jodhpur and remitted the matter for re-trial.

The brief facts necessary for deciding the case are :

A letter of authorization under Section 133A of the Income Tax Act 1961 was issued by Assistant Director of Inspection (Intelligence), Jodhpur in favour of one Mr. G.C Singhvi for undertaking survey upon M/S Om Prakash and Company.

Mr. G.C. Singhvi and Mr. H.M. Gandhi reached the premises of M/S Om Prakash & Company for undertaking the survey on 07.09.1981. They entered the shop and asked them to allow the survey of shop. The FIR was filed by Mr. H.M. Gandhi on 07.09.1981 against the appellants alleging offences under Sections 332 and 353 of the IPC. The charges were framed under Sections 120B, 353, 332 and 395 IPC against the appellants.

On the evidence led by the prosecution as well as the defence and the Trial Court recorded two findings; firstly that authorization of inspection by the Assistant Director was not as per law and hence the entire inspection was without jurisdiction. The Trial Court further on merits held that the prosecution is unable to prove the crime of the accused and hence they were entitled for benefit of doubt. Thus, the accused were acquitted by judgment dated 14.09.1992.

Against the judgment of the Trial Court acquitting the accused, a criminal revision was filed by Mr. H.M. Gandhi in the High Court. The State did not choose to file any revision against the acquittal order. The High Court heard the parties and took the view that the Assistant Director (Inspection) was fully competent to authorize for inspection by virtue of Section 133A of the Income Tax Act, 1961 (as amended in 1975). The High Court, holding that the Assistant Director was competent to direct for inspection, has set aside the judgment of the Trial Court and remitted the matter for re-trial.

Aggrieved by the said judgment of the High Court, the appellants have come up in this appeal.

Learned counsel for the appellants contends that even if for arguments sake it is accepted that the Assistant Director was competent to direct for inspection, the inspection was authorized to only one person viz. Mr. G.C. Singhvi and Mr. H.M. Gandhi was not authorized. He submits that in the statement given by Mr. G.C. Singhvi, he himself has admitted that the name of Mr. H.M. Gandhi was added by himself. He stated that both of them always used to go together for carrying out inspection. The Trial Court in addition to the finding that inspection was unauthorized had entered into merits of the case and reported that the prosecution failed to prove his case. The High Court, without adverting to that part of the judgment, has set aside the order which is unsustainable. Learned counsel for the appellants further submits that the trial commenced on 07.09.1981, about 38 years have elapsed and now the High Court has directed for re-trial.

We have considered the submissions of learned counsel for the parties and perused the record.

From the evidence on record, it is clear that the Assistant Director (Intelligence) has authorized only Mr. G.C. Singhvi to carry out inspection and Mr. H. M. Gandhi was added by Mr. G.C. Singhvi himself. Mr. H.M. Gandhi went along with G.C. Singhvi to carry out inspection. It is Mr. H.M. Gandhi who has filed the criminal revision and not Mr. G.C. Singhvi or the State.

The Trial Court after holding that the Assistant Director (Intelligence) was not authorized to direct for inspection, considered the evidence on record and returned finding on the merits of the case which are to the following effect:

"30. As a result, the prosecution is not able to prove its case. In such a situation there is no need to examine and consider the evidence of the defence witness of D.D.1 Shyam Prakash.

As a result the prosecution is unable to prove the crime of the accused and also unable to made the point of consideration from A to D has reliable and valid, hence, the benefit of doubt has to be given to the accused. Now they are being feed from the alleged crime under Section 120B, 353, 332 and 395 of the IPC. The confiscated goods except two diaries, after the case may be written to Himmat Mal Gandhi after the specified period, whereas the confiscated diaries article 17 & 18 be return to the accused Harak Chand."

The High Court in the criminal revision held that the Assistant Director (Intelligence) was authorized to direct for inspection and set aside the order of the Trial Court and remitted the matter for re-trial. The last two paras of the judgment of the High Court are as follows:

In view of the aforesaid discussions, the judgment of the learned trial court proceeds on misconception of law and even according to law relied on by the learned counsel for the respondent an improper acceptance or rejection of evidence can be a ground for retrial. Here the judgment proceeds on a misreading of law. This is not a proper exercise of jurisdiction and deserved to be set aside.

Once the judgment is set aside the matter is required to be sent back to the trial court for retiral and for that purpose the trial court is to conduct retrial and for that purpose the Income Tax Authorities may be called to explain powers which were required to make Ex. P/1 an authoritative authorization and thereafter decide the matter in accordance with law."

The impugned judgment of the High Court indicates that the High Court did not enter into that part of the judgment where the Trial Court on merits held that the prosecution has failed to prove his case and benefit of doubt was extended to the accused. When the Trial Court had returned the findings on the merits that the prosecution has failed to prove his case, the fact that inspection was authorized cannot lead to re-trial; unless the findings that no offence was proved recorded by the Trial Court on merits are impeached by the High Court.

We, thus, are of the view that in facts of the present case the judgment of the High Court for retrial is unsustainable.

We allow the appeal accordingly.