Director General of Income Tax (Investigation) and others vs Deputy Commissioner of Police Bengaluru – East Division
Writ Petition 29697 of 2017 decided on 25 November 2021
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/423229/1/WP29697-17-25-11-2021.pdf
The petitioners are before this Court calling in question proceedings in FIR dated 28.02.2017 in Crime No.52 of 2017, notice dated 13.04.2017 issued under Section 91 of the Cr.P.C. and a letter dated 20.06.2017.
16. Admittedly, search and seizure is performed by the petitioners under the Act. The bar of divulging any information or any document taken into custody during the seizure is available under Section 138(2) of the Act. In the teeth of the said provision in the Act, the notice issued by the Police, on the face of it, would be contrary to law. The notice that the Police issued on 13.04.2017, is on the strength of the FIR for the alleged offences as aforesaid. Since the notice emanates pursuant to registration of the FIR, the registration of the FIR itself was bad in law, as recording of FIR against the petitioners, who are officers of Government and have performed certain acts of search and seizure under Section 132 of the Act, cannot be brought to prosecution particularly, for the offences alleged in the FIR. The complaint ought not to have been entertained by the 3rd respondent/Police and registration of FIR ought not to have been done in the light of the aforesaid provisions of the Act.
17. It is rather shocking that what the complainant wants in the complaint is, the diary and what the Police want to secure from the petitioners is the diary and no other document is required by the Police for investigation of the allegations of offences, which run into 15 in number, but only the diary. It cannot but be held that the 3rd respondent was acting at the behest of the complainant to secure the diary by invoking Section 91 of the Cr.P.C., thereby summoning the diary. Since the FIR could not have been registered against the petitioners in view of the specific bar under Section 293 of the Act, the aftermath of such registration would be rendered without authority of law.
18. The submission of the learned senior counsel appearing for the second respondent / complainant is that, the writ petition is not maintainable as nobody is named in the FIR and challenging the said FIR by the petitioners in particular, would not be maintainable. If the act of registration of the FIR had stopped at that point, the submission of the learned senior counsel would become acceptable. The ulterior motive in registration of FIR is seen in the subsequent proceedings. Police Notice is issued under Section 91 of the Cr.P.C. to the 1st petitioner wherein, it is indicated that Crime No.52 of 2017 is pending consideration. The second communication is issued on 20.06.2017, which again discloses offences punishable as aforesaid in Crime No.52 of 2017. Therefore, what the Police want to investigate is the act of search and seizure done by the petitioners, communication and police notice that are sent to the petitioners. Therefore, it cannot be urged by the learned senior counsel that the FIR names nobody and the writ petition would not be maintainable. This submission deserves to be rejected and is rejected.
The FIR dated 28.02.2017, registered in Crime No.52 of 2017, before the 3rd respondent and all further proceedings taken up pursuant thereto stand quashed.
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