Mohan Anand vs Union of India

This petition has been filed challenging the order framing notice dated 10-12-1998 u/s 251 Cr. P.C.

It is argued by counsel for the petitioners that the petitioners are being prosecuted for violation u/s 142 of the Income Tax Act for having not supplied information as required in notice served on them u/s 142 of the Income Tax Act. He submits that they can only be asked to furnish that information which in their possession but cannot be forced to submit and furnish information which is not in their control and possession. In the present case, what is being asked of them is to obtain confirmation from the bank which information can be obtained u/s 131 of the Income Tax Act directly by the assessing authority. He refers to a judgment of the Bombay High Court in COMMISSIONER OF INCOME TAX, BOMBAY Vs. BOMBAY TRUST CORPORATION., in his support. Counsel for the respondent on the other hand contends that the notice calling upon to the petitioners to furnish information was broader and encompass more information than the one as is being referred to by counsel for the petitioner inasmuch as the notice has also demanded information from the petitioners other than the confirmation of bank. He further submits that at the time of framing of notice the trial court has gone into the material placed before it and was satisfied that the petitioners should be summoned to face the prosecution. He, however, submits that the petitioners were not heard at this stage.

Heard counsel for the parties. In view of the judgment of the Supreme Court in K.M. Mathew v. State of Kerala AIR 1992 SC 2208 the petitioner if aggrieved of any material that has not been considered by the trial court at the time of framing of notice they would be in a position to approach the court again and draw its attention to the material which they feel ought to have been considered. Consequently, the petitioners are granted liberty to approach the trial court in terms of K.M. Mathews case (supra) and placed before it any material, circular, rule, regulation, law or judgment which needs attention while framing of notice u/s 251 Cr. P.C.

Counsel for the petitioners inform me that the petitioners herein are residing in Hague and would be required to attend the hearings before the trial court unless their personal appearance is exempted. Counsel for the respondent submits that he has no objection to personal appearance of petitioners being exempted unless the trial court should want their presence on any particular hearing.

Having heard counsel for the petitioners, while permitting the petitioners to approach the trial court in terms of K.M. Mathews case (supra), 1 deem it proper to exempt the personal appearance of the petitioners. It is ordered accordingly. They may be represented through counsel but shall make themselves available to the trial court if and when the trial court should so required for any particular bearing.

With this, Crl. M.C. 863/2002 stands disposed of. Interim order, if any, stands vacated, Crl. M.A. 1126/2002 also stand disposed of.