India: Discharge vs. Quashing In Criminal Prosecutions Under The (Indian) Income Tax Act

Last Updated: 21 July 2016
Article by Vijay Pal Dalmia, Partner

Article by Vijay Pal Dalmia, Advocate, Supreme Court of India and Delhi High Court, Partner & Head of Intellectual Property Laws Division, Vaish Associates Advocates, India

In view of the numerous complaints filed by the income Tax Department for criminal prosecutions under the Income Tax Act, it becomes important to analyze the remedies available with the accused in these cases, especially the option of choosing between the filing an application for discharge or approaching the High Court in a Quashing petition. To understand various offences and criminal prosecutions under the Income Tax, please refer to another article written by the author at http://www.mondaq.com/india/x/373388/Income+Tax/Offences+and+Prosecutions+ Under+Chapter+XXII+of+the+Indian+IncomeTax+Act+1961.

The process of criminal trial in India can be understood by clicking at the following link at http://documents.lexology.com/b3e42a02-9eb5-4854-b250-3362a79d73f5.pdf#page=2 .

It is a continuous dilemma prevailing before the legal fraternity and the accused persons, i.e. whether they should approach the trial Court with an application for discharge, or approach the High Court under Section 482 of the Criminal Procedure Code (Cr.P.C.) for quashing of the summoning orders, provided they are of the view that their case has some merits for such relief.

The Hon'ble Supreme Court in the case of Bhushan Kumar & Anr. Vs.State (NCT of Delhi) & Anr. (http://judis.nic.in/supremecourt/imgs1.aspx?filename=39199 ) has held that:

"It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons issued under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial Court to carefully go through the allegations made in the charge sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code."

In the Bhushan Kumar & Anr. vs. State (NCT of Delhi) & Anr, it was also held that the petition filed under Section 482 of the Code is not maintainable, cannot be accepted in view of various decisions of the Supreme Court of India (vide Pepsi Foods Ltd. & Anr. vs. Special Judicial Magistrate & Ors. (1998) 5 SCC 749 (http://judis.nic.in/supremecourt/imgs1.aspx?filename=13701), Dhariwal Tobacco Products Ltd. & Ors. vs. State of Maharashtra & Anr. (2009) 2 SCC 370 (http://judis.nic.in/supremecourt/imgs1.aspx?filename=33390) and M.A.A. Annamalai vs. State of Karnataka & Anr. (2010) 8 SCC 524). Still, divergent views are being taken by various High Courts, directing the affected parties to first approach the trial Courts under Sections 239, 245  of the Cr.P.C. or approach the Session's Court under its revisional jurisdiction, despite the fact that under Section 397 of the Cr.P.C., the High Court and the Session's Court have the concurrent jurisdiction. Moreover, there has been a catena of judgments wherein it has been held that an accused can also approach the High Court under its inherent power for quashing of the summoning orders.

The general and consistent law is that the inherent power of the High Court under Sec. 482 of Cr.P.C. for quashing has to be exercised sparingly with circumspection and in the rarest of rare cases.

The Supreme Court in Som Mittal vs Govt. Of Karnataka (http://judis.nic.in/supremecourt/imgs1.aspx?filename=30202), has held that the power under Sec. 482 Cr.P.C. must be exercised sparingly, with circumspection and in rarest of rare cases. Exercise of inherent power under Sec. 482 of the Code of Criminal Procedure is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal.

In the case of Central Bureau of Investigation v. Ravi Shankar Srivastava (http://judis.nic.in/supremecourt/imgs1.aspx?filename=27925), the Supreme Court was of the opinion that, the High Court in exercise of its jurisdiction under Sec. 482 of the Code does not function either as a court of appeal or revision, and held and envisaged that three circumstances under which the inherent jurisdiction may be exercised, namely,

  1. to give effect to an order under the Code,
  2. to prevent abuse of the process of the Court, and
  3. to otherwise secure the ends of justice.

The Supreme Court further held that while exercising powers under Sec. 482 of the Cr.P.C., the court does not function as a court of appeal or revision. Inherent jurisdiction under Sec. 482 of the Cr.P.C., though wide, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in Sec. 482 of the Cr.P.C., itself. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of powers the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of the court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

In another case, State of Haryana and others v. Ch. BhajanLal &Ors. (http://judis.nic.in/supremecourt/imgs1.aspx?filename=7332), the Supreme Court laid down the categories of cases in which the High Court may, in exercise of powers under Sec. 226 of the Constitution of India or under Sec. 482 Cr.P.C., interfere in proceedings to prevent abuse of process of the Court or otherwise to secure the ends of justice:

Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.

  1. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Sec. 156(1) of the Code except under an order of a Magistrate within the purview of Sec. 155(2) of the Code.
  2. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
  3. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Sec. 155(2) of the Code.
  4. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
  5. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
  6. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

It has been held by the Apex Court that "when the allegations made in the complaint even if taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused or where allegations made in the complaint and the evidence produced in support of the same do not disclose the commission of any offence and make out a case against the accused, it is open to the High Court in the exercise of extra ordinary inherent powers to quash the complaint or the FIR."

* The author is a senior litigator with 30 years of experience in court trials and deals with cases relating to prosecution under the Income Tax Act, 1961, The Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015, Money Laundering Act, economic offences and white collar crimes.

© 2016, Vaish Associates Advocates,
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Advocates, 1st & 11th Floors, Mohan Dev Building 13, Tolstoy Marg New Delhi-110001 (India).

The content of this article is intended to provide a general guide to the subject matter. Specialist professional advice should be sought about your specific circumstances. The views expressed in this article are solely of the authors of this article.

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Vijay Pal Dalmia, Partner
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