REPORTABLE IN SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.824 OF 2016 [ARISING OUT OF S.L.P. (CRL) NO. 1474 OF 2012] BABITA LILA & ANOTHER ....APPELLANTS VERSUS UNION OF INDIA ..RESPONDENT JUDGMENT AMITAVA ROY, J. Leave granted 2. Being aggrieved by rejection of their challenge to initiation of their prosecution under Sections 109/191/193/196/200/420/120B/34 IPC on basis of complaint made by Deputy Director of Income Tax (Investigation)-I, Bhopal (M.P.), both on ground of lack of competence of complainant and of jurisdiction of Trial Court at Bhopal, appellants seek remedial intervention of this Court under Article 136 of Constitution of India. 3. appellants, who are husband and wife, are residents of both Bhopal and Aurangabad. search operation was conducted by authorities under Income Tax Act, 1961 (for short, hereinafter referred to as Act ) on 28.10.2010 at both residences of appellants, in Signature Not Verified Digitally signed by VISHAL ANAND Date: 2016.09.01 16:55:01 IST Reason: course whereof their statements were recorded on oath under Section 131 of Act. On query made by authorities, it is alleged that they 2 made false statements denying of having any locker either in individual names or jointly in any bank. It later transpired that they did have safe deposit locker with Axis Bank (formerly known as UTI Bank) at Aurangabad which they had also operated on 30.10.2010. search at Aurangabad was conducted by Income Tax Officer, Nashik and Income Tax Officer, Dhule and statements of appellants were also recorded at Aurangabad. 4. Based on revelation that appellants, on date of search, did have one locker as aforementioned and that their statements to contrary were false and misleading, complaint was filed as afore-stated under above-mentioned sections of Indian Penal Code by Deputy Director of Income Tax (Investigation)-I, Bhopal (M.P.) on 30.5.2011 in court of Chief Judicial Magistrate, Bhopal, (M.P.) and same was registered as R.T. No. 5171 of 2011. 5. Trial Court on 9.6.2011, took note of offences imputed and issued process against appellants. In doing so, Trial Court, amongst others, noted that search proceedings undertaken by authorities under Section 132 of Act were deemed to be judicial proceedings in terms of Section 136 and in course whereof, as alleged, appellants had made false statements with regard to their locker and that on basis of documents and evidence produced on behalf of complainant, sufficient grounds had been made out against them to proceed under Sections 191,193, 200 IPC. 6. appellants impugned this order of Trial Court before High Court under Section 482 Cr.P.C. (for short hereinafter to be referred to as Code ) and sought annulment thereof primarily on 3 ground that search operations having been undertaken by I.T.Os. of Nashik and Dhule, complaint could not have been lodged by Deputy Director of Income Tax (Investigation)-I, Bhopal (M.P.) who was not appellate authority in terms of Section 195(4) of Code and further no part of alleged offence having been committed within territorial limits of Court of Chief Judicial Magistrate, Bhopal, it had no jurisdiction to either entertain complaint or take cognizance of accusations. By order impeached herein, High Court has declined to interfere on either of these contentions. 7. We have heard Ms. Sangeeta Kumar, learned counsel for appellants and Mr Ranjit Kumar, learned Solicitor General for respondent. 8. Profusely referring to Section 195 of Code as whole, it has been urged on behalf of appellants that Deputy Director of Income Tax (Investigation)-I, Bhopal (M.P.), in facts of case was not competent to lodge complaint, he being not authority to whom appeals would ordinarily lie from orders or actions of I.T.Os., Nashik and Dhule. As statements of appellants were recorded in course of search under Section 132 of Act which was judicial proceeding and for that matter, concerned I.T.Os., Dhule and Nashik were deemed to be civil courts, it has been argued that in observance of mandate of Section 195 (4) of Code, complaint could be lodged either by authorities conducting search or by authority to whom ordinarily appeal would lie from orders/decisions and actions of income tax authorities undertaking search. It has been asserted with reference to Sections 246 and 246A of Act in particular, 4 that complainant, Deputy Director of Income Tax (Investigation)-I, Bhopal (M.P.) is not authority/forum to whom appeal lies from orders of I.T.Os. involved and thus was not Court as contemplated in Section 195(1)(b) or appellate forum under Section 195(4) of Code. 9. It has been emphatically maintained on behalf of appellants that having regard to place of search, recording of their statements as well as of location of locker, no cause of action for initiation of criminal proceedings had arisen within jurisdiction of court of Chief Judicial Magistrate, Bhopal in terms of Sections 177 and 178 of Code and thus High Court had grossly erred in deciding contrary thereto. It has been argued that rejection of their plea by High Court on ground that Deputy Director of Income Tax (Investigation)-I, Bhopal (M.P.) was officer superior in rank to I.T.Os. conducting search is patently flawed and unsustainable in law and on facts, having regard to peremptory perquisites of valid complaint under Section 195 of Code. 10. Reliance on decisions of this Court in Kuldip Singh vs. State of Punjab and Another 1956 SCR 125, Lalji Haridas vs. State of Maharashtra and Another 1964 (6) SCR 700, Rajesh Kumar and Others vs. Deputy C.I.T. and Others (2007) 2 SCC 181, Y. Abraham Ajith and Others vs. Inspector of Police, Chennai and Another (2004) 8 SCC 100 and Bhura Ram and others vs. State of Rajasthan and Another (2008) 11 SCC 103 has been made in buttressal of above assertions. 5 11. In refutation of arguments advanced on behalf of appellants, learned Solicitor General has assertively endorsed impugned findings, contending that decision assailed is based on detailed reference to provisions of Act enumerated in Chapters XIII and XX and correct analysis thereof. He has maintained that having regard to scheme of these chapters in particular and underlying legislative intent ascertainable therefrom, Deputy Director of Income Tax (Investigation)-I, Bhopal (M.P.) had competence and jurisdiction to lodge complaint at Bhopal. This authority being admittedly and as patent from hierarchy enumerated by Act, higher in rank than I.T.Os. who had conducted search and investigation, did have authority to file complaint and that thereby prescriptions of Sections 195(1)(b) and 195(g) of Code had not, in any way, been contravened. This is more so as powers of any income tax authority under Act and his/her jurisdiction to perform any function is not limited or restricted but has been consciously enlarged to deal with any contingency so as to advance objectives of legislation, he urged. 12. Vis-a-vis competence of court of Chief Judicial Magistrate, Bhopal, learned Solicitor General insisted that as appellants were residents, both of Bhopal and Aurangabad and search operations were conducted simultaneously at both places, and further as they had been filing their income tax returns at Bhopal, Trial Court before which complaint had been filed, was competent to take cognizance of offences alleged in terms of Section 178 (b) and (d) of Code. To reinforce above, decision of Constitution Bench of this Court in Lalji Haridas (supra) has been pressed into service. 6 13. Before adverting to competing contentions, it would be apt to note conclusions of High Court on these two counts. In addition to admitted factual aspects narrated hereinabove, High Court upheld jurisdiction of Chief Judicial Magistrate, Bhopal by taking note also of fact that income tax returns relatable to undisclosed property i.e. locker had been filed at Bhopal. facts, to reiterate, that appellants were residents of Bhopal and Aurangabad, and that search operations were conducted simultaneously at both places were noted as well. 14. Qua competence of Deputy Director, Income Tax (Investigations)-I Bhopal, High Court held view that he being admittedly officer superior in rank to I.T.Os. conducting search, institution of complaint by him was not vitiated by any lack of authority. Reference to Section 136 of Act, whereunder any proceeding before income tax authority would be judicial proceeding and that for that matter, every income tax authority is deemed to be civil court was recorded as well. High Court did refer to Section 195 of Code to enter finding that Deputy Director, Income Tax (Investigations)-I Bhopal being officer superior to I.T.Os. undertaking search and to whom appeal from their orders/decisions/actions ordinarily lay, was civil court as contemplated thereunder to lodge complaint. 15. competing contentions have received our due consideration. rival submissions stir up two major issues pertaining to maintainability and adjudication of complaint lodged before Chief Judicial Magistrate, Bhopal, (M.P.) by Deputy Director, Income 7 Tax (Investigation)-I, Bhopal, (M.P) in face of prescription of Section 195(1)(b) of Code, in particular read with other cognate sub-sections thereof as well as limits of territorial jurisdiction of court before which prosecution of appellants has been initiated in context of Section 177 of Code. 16. Having regard to decisive bearing of adjudication on validity or otherwise of complaint by Deputy Director, Income Tax (Investigation)-I, Bhopal, (M.P). in textual facts, expedient it would be to dwell on this aspect at threshold. 17. admitted facts reveal that appellants have residences both at Bhopal and Aurangabad and file their returns of income tax at Bhopal. On 28.10.2010, search operations under Section 132 of Act were simultaneously conducted at both places. In course of interrogation of appellants, more specifically on aspect as to whether they or any of them either individually or jointly did hold any locker, answer was in negative. accusation of authorities is that further investigation revealed that they did hold locker in Axis Bank (formerly known as UTI Bank), Kranti Chowk, Aurangabad which had been operated by appellant No. 1 on 30.10.2010. In this factual backdrop, complaint had been filed by Deputy Director, Income Tax (Investigation)-I, Bhopal, (M.P) in court of Chief Judicial Magistrate, Bhopal, (M.P.) asserting that by making such false statement in course of search operations which were judicial proceedings in terms of Section 136 of Act, appellants had committed offence under Sections 109/191/193/196/200/420/120B/34 IPC. As referred to hereinabove, Chief Judicial Magistrate, Bhopal, after necessary hearing as contemplated 8 in law and being prima facie satisfied that sufficient grounds had been made out to proceed against appellants under Sections 191,193 and 200 IPC, issued process against them. 18. As documents appended to appeal would divulge that search operations at Aurangabad had been conducted on strength of warrant of authorisation dated 26.10.2010 under Section 132 of Act, issued, signed and sealed by Director of Income Tax (Inv.), M.P. & C.G.,Bhopal/Deputy Director of Income Tax and statements of appellant Nos. 1 and 2 were recorded by Mrs. Bharati Choudhary, I.T.O. and Mr. A.T. Kapase, I.T.O. (Inv.), Nashik on 28.10.2010. materials on record also disclose that search operations did continue on subsequent dates as well, in course whereof seizures were made. 19. Be that as it may, eventually office of Deputy Director of Income Tax (Investigation)-I, Bhopal on 8.2.2011 issued show cause notice to appellants under Section 277 of Act alleging that they had made false statement under Section 132(4) thereof, thereby seeking reply as to why prosecution would not follow by virtue thereof. It is in this factual premise, that validity of complaint filed by Deputy Director, Income Tax (Investigation)-I, Bhopal, (M.P). has been questioned by appellants. To reiterate, by impugned order, High Court has negated both demurrals of appellants pertaining to complaint and territorial jurisdiction of court of Chief Judicial Magistrate, Bhopal. 20. state of law as adumbrated by precedents cited may now be outlined before referring to relevant provisions involved. 21. In Kuldip Singh (supra), question involved before 9 Constitution Bench of this Court was about validity of complaint made under Section 476-A read with Section 195(3) of Code of Criminal Procedure Code 1898 against appellant for perjury and for using forged document as genuine. contextual facts narrate that 2nd respondent therein had filed suit against appellant for recovery of money on basis of mortgage in Court of one Mr. E.F. Barlow, Subordinate Judge of 1st Class. appellant in suit filed receipt which purported to show that Rs.35000/- had been paid towards satisfaction of mortgage and in witness box he swore that he had paid money for which receipt was given. 22. Mr. Barlow held that receipt did not appear to be genuine document and that evidence of appellant to that effect was not true. preliminary decree was accordingly passed against appellant for entire amount followed by final decree. appeal preferred by appellant was also dismissed by High Court which reiterated that receipt was very suspicious document and that appellant's evidence was not reliable as well. 23. plaintiff/respondent thereafter made application in Court of Mr. W. Augustine who had succeeded Mr. Barlow as Subordinate Judge of 1 st Class stating that complaint be filed against appellant under Sections 193 and 471 I.P.C. Mr. Augustine, because of his transfer could not hear application for filing of complaint. In his place Mr. K.K. Gujral, subordinate Judge of 4th Class was sent. He, however, declined to entertain matter as he was only subordinate judge of 4 th Class and laid report to District Judge pointing out his lack of jurisdiction in matter as 10 offences had been allegedly committed in Court of subordinate Judge of 1st Class. District Judge thereupon transferred matter to Senior Subordinate Judge, Mr. Pitam Singh who made complaint. impeachment of validity of complaint has arisen in this backdrop. 24. As sequence of events unfold, appellant filed appeal against order of Mr. Pitam Singh to Additional District Judge Mr, J.N. Kapur who held that Senior Subordinate Judge Mr. Pitam Singh had no jurisdiction to make complaint. He also held that on merits as well there was no prima facie case. High Court, however, in revision held that Senior Subordinate Judge had jurisdiction and further materials on record did disclose prima facie case. Accordingly, order of Additional District Judge was set aside and order of Senior Subordinate Judge was restored. 25. Three questions fell before this Court for scrutiny. Firstly, whether Senior Subordinate Judge Mr. Pitam Singh had jurisdiction to entertain application and make complaint. Secondly, whether Additional District Judge had jurisdiction to entertain appeal preferred against order of Mr. Pitam Singh and thirdly, whether High Court had power to reverse order of Additional District Judge in revision. 26. While dwelling upon first issue, this Court adverted at threshold to Section 195(1)(b) and (c) of Code which prohibited any Court from taking cognizance of either of two offences alleged, except on complaint in writing of Court concerned or of some other Court to which such Court was subordinate. Having regard to 11 fact that offences were committed in Court of E.F. Barlow, Subordinate Judge of 1st Class, their Lordships next referred to Section 476-A of Code which prescribed that when Court in which offence is said to have been committed neither makes complaint nor rejects application for making of complaint, Court to which such former Court is subordinate within meaning of Section 195 (3) may take action under Section 476. 27. Their Lordships noted that Section 476 authorised appropriate Court, after recording finding to effect that it was expedient to do so in interest of justice to make complaint in writing and forward it to Magistrate of 1st Class having jurisdiction. While examining in scheme of prevalent hierarchy of posts as to whether court of Senior Subordinate Judge presided over by Mr. Pitam Singh was Court to which Court of Mr. Barlow was subordinate within meaning of Section 195(3) of Code, their Lordships marked that in terms of Section 195(3), Court for purposes thereof, would be deemed to be subordinate to Court to which appeals ordinarily lay from appealable decrees or sentences of such former Court, or in case of Civil Court from whose decrees no appeal ordinarily lay, to principal court having ordinary original civil jurisdiction within local limits of whose jurisdiction such Civil Court was situated. proviso to Section 195(3) was also noted which ordained that where appeals lie to more than one court, appellate court of inferior jurisdiction would be court to which such court would be deemed to be subordinate. Further when appeals lay to Civil and also to Revenue Court, such Courts would be deemed to be 12 subordinate to Civil or Revenue Court, according to nature of case or proceedings in connection with which offence was alleged to have been committed. 28. In this conspectus, this Court laid decisive emphasis on word ordinarily and to disinter legislative intent, alluded to relevant provisions of Punjab Courts Act, 1918 dealing in particular with classes and hierarchy of Civil Courts. Apart from Courts of Small Causes, it was noticed that under said Act following three classes of Civil Courts were provided: (i) Court of District Judge (ii) Court of Additional Judge (iii) Court of Subordinate Judge 29. Vis-a-vis provisions for appeal under Section 39 of Act, it was noted that in absence of any other enactment for time being in force, appeals lay to Court of District Judge when value of suit did not exceed Rs.5,000/- and in every other case to High Court. Section 39(3), however, empowered High Court by notification to direct that appeals lying to District Court from all or any of decrees or orders passed in its original jurisdiction by Subordinate Judge, would be preferred to such other Subordinate Judge as mentioned in such notification. facts revealed that as matter of fact such power had been invoked and appeals lying to District Courts from decrees or orders passed by Subordinate Judge in two classes of cases as specified could be preferred before Senior Subordinate Judge of 1st Class exercising jurisdiction within such Civil District. 13 30. In this factual setting their Lordships expounded that filing of appeal to Senior Subordinate Judge as notified qua two selected categories of cases, could not be termed as ordinary because special appellate jurisdiction had been conferred by notification, by way of additional assignment so much so that power pertaining thereto could be exercised in certain limited categories of cases. It was not ordinary appellate jurisdiction of Senior Subordinate Judge and for that matter for all Senior Subordinate Judges generally, it could not be said that appeals from Courts of Subordinate Judges ordinarily lay to that of Senior Subordinate Judge. 31. Their Lordships thus concluded that in paradigm of Civil Courts as codified by Punjab Court's Act, 1918, appeals ordinarily lay either to District Court or to High Court and as District Court was of lower tier of these two forums, it was to be regarded as appellate authority for purposes of Section 476 B of Code. With reference to Proviso (b) to Section 195(3) of Code, it was held that where in facts of case, appeals would lie to Civil as well as Revenue Court, nature of case or proceeding would determine court to which appeal would lie and that to that limited extent nature of proceeding ought to be taken into account, but once genus of proceeding is determined namely, Civil, Criminal or Revenue, hierarchy of superior Courts would be determined first by rules that apply in their special cases, if any and next by rule in Section 195(3). 32. While dealing with aspect as to whether Court of senior Subordinate Judge was Court to which Court of 14 Subordinate Judge of 1st Class was Subordinate or both courts were at par, their Lordships confined adjudication to provisions of Punjab Court's Act, Section (18) whereof did authorise State Government to fix number of subordinate judges to be appointed. Section 27 which vested power in High Court to post subordinate judge and also prescribe limits of his/her jurisdiction was also referred to. Their Lordships noted in terms of Notification dated 03.01.1923 that four classes of Subordinate Judges had been contemplated based on pecuniary jurisdiction conferred. 33. In above factual as well as legal premise it was thus propounded that Senior Subordinate Judge Pitam Singh had no jurisdiction to lodge complaint and instead it was District Judge who was competent to do so, being Court to which appeals ordinarily lay from court of subordinate judge and was lower in rank to High Court in hierarchy. It was held in this context, that Court of Additional District Judge could not be construed to be District Judge and that jurisdiction of former was limited to discharge of such functions as were to be entrusted by District Judge. It was thus concluded that neither Senior Subordinate Judge Mr. Pitam Singh nor Additional Judge Mr. J.N. Kapur who construed himself as Additional District Judge, had jurisdiction in matter and in view of provisions of Punjab Courts Act, it was District Judge who was competent to lodge complaint in terms of Section 195(3) of Code. Having regard to gravity of allegations, this Court remitted matter to District Court to do needful in 15 exercise of his discretion in facts and circumstances of case. 34. In Lalji Haridas (supra), Constitution Bench of this Court was seized with question as to whether proceeding before I.T.O. under Section 37 of Indian Income Tax Act, 1922 (as it was then) could be construed to be proceeding in any court within meaning of Section 195(1)(b) of Code. factual backdrop as outlined discloses that appellant and respondent No. 2 therein were businessmen and used to carry on their business at two different places and were known to each other for several years. In income tax assessment proceedings of appellant for assessment years 1949-50 and 1950-51, respondent No. 2 adduced evidence on oath before I.T.O. of concerned ward, wherein he denied that he had son named Nihal Chand and that he had done any business in name of M/s. Nihal Chand & Co. at Jamnagar. appellant alleged that said statement was false to knowledge of respondent No. 2 and was made to mislead enquiring I.T.O. and to avoid incidence of income tax on himself and consequently appellant was heavily taxed. 35. appellant thereafter filed criminal complaint against respondent No. 2 under Section 193 IPC. At hearing of complaint, respondent No. 2 raised preliminary objection that learned Magistrate before whom complaint had been filed, could not have taken cognizance thereof as allegation was making of false statement by him on oath in proceeding before court within meaning of Section 195(1)(b) of Code and in such eventuality, complaint was to be filed by court concerned as required under said provision of Code and thus appellant was not competent to 16 lodge prosecution. 36. Though learned Magistrate held that I.T.O. was not court within meaning of Section 195(1)(b) of Code, High Court, on revision being filed by respondent No. 2, sustained his challenge to maintainability of complaint. High Court held that I.T.O. was court within meaning of Section 195(1)(b) of Code and resultantly dismissed complaint filed by appellant, who eventually approached this Court. 37. Adverting to Section 37 of Income Tax Act, 1922 and sub-section (4) thereof in particular, it was held that as apparent therefrom, any proceeding before I.T.O. in which powers under sub-sections (1), (2) and (3) are exercised by him, would be judicial proceeding for purposes of three sections of Indian Penal Code as enumerated in sub-section (4). Consequently, question as to whether false statement alleged to have been made by respondent No. 2 was rendered in judicial proceeding within meaning of Section 193 IPC was answered in affirmative. 38. This Court also dwelt upon aspect whether judicial proceeding as referred to in Section 193 IPC was synonymous with expression any proceeding in any court used in Section 195(1)(b) of Code. This issue surfaced primarily in view of two classes of proceedings contemplated in Section 193 IPC attracting two varying punishments. This provision, it was noted, envisaged punishable offence for giving false evidence in any stage of judicial proceeding or fabricating false evidence for purpose of being used in any stage of 17 judicial proceeding and also for giving or fabricating false evidence in any other case. This Court in ultimate analysis propounded on conjoint reading of Section 193 IPC and Section 195(1)(b) of Code that proceedings which are judicial under former ought to be taken to be proceedings in any court under latter. In this context, it was ruled that having regard to higher sentence for offence under Section 193 IPC qua judicial proceeding compared to any other case; legislature thus had intended that there ought to be safeguard in respect of complaints pertaining to offence relatable to judicial proceedings as engrafted in Section 195(1)(b) of Code. It was observed that offence which was treated as more serious by first paragraph of Section 193 IPC, being one committed during course of judicial proceeding, should be held to be offence committed in proceeding in any court for propose of Section 195(1)(b) of Code. In terms of majority decision that was rendered, view taken by High Court was sustained and complaint was dismissed as not filed in compliance of statutory prescriptions contained in Section 195(1)(b) of Code. 39. Noticeably in course of adjudication, it was marked that Section 195 was exception to ordinary rule that any person could make complaint in respect of commission of offence triable under Code. restrictive mandate of this provision of Code against cognizance of any offence punishable under sections mentioned therein, when those pertain to any proceedings in any court, except on compliant in writing of such court or of some other court to which such court is subordinate, was underlined in particular. This Court, thus 18 emphasised that in matter of invocation of Section 195(1)(b) of Code, vis-a-vis complaint about any of offences as mentioned therein, exception to ordinary rule of making complaint by any person has been carved out and by way of safeguard, only court in proceeding before which such offence had been committed or such officer of Court as it may authorise in writing or some other court to which to this Court is subordinate, has been legislatively identified as competent to do so. 40. decision in Rajesh Kumar (supra) pertains to decision of authorities under Act to conduct special audit of account of petitioner - assessee in terms of Section 142(2-A) of Act. This was subsequent to raid conducted in premises of assessee in course whereof some documents including its books of accounts had been seized. assessee questioned this decision of appointment of special auditor principally on ground of want of fairness in action as no opportunity of hearing was given to it, prior thereto. interpretation and application of Section 142(2-A) of Act in textual facts thus fell for consideration in this case. It is in this context that this Court ruled that assessment proceeding under Act, is in terms of Section 136 thereof, judicial proceeding and that when statutory power is exercised by assessing authority in exercise of judicial function which is detrimental to assessee, same is not and cannot be administrative in nature. In extant facts and circumstances challenge of assessee was upheld. 41. As genesis of debate is rooted to Section 195 of Code, detailed reference thereto is indispensable. For convenience, 19 Section 195 as whole is extracted hereinbelow: 195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. (1) No Court shall take cognizance- (a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of Indian Penal Code (45 of 1860), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on complaint in writing of public servant concerned or of some other public servant to whom he is administratively subordinate; (b) (i) of any offence punishable under any of following sections of Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of said Code, when such offence is alleged to have been committed in respect of document produced or given in evidence in proceeding in any Court, or 20 (iii) of any criminal conspiracy to commit, or attempt to commit, or abetment of, any offence specified in sub- clause (i) or sub- clause (ii), [except on complaint in writing of that Court or by such officer of Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate]. (2) Where complaint has been made by public servant under clause (a) of sub- section (1) any authority to which he is administratively subordinate may order withdrawal of complaint and send copy of such order to Court; and upon its receipt by Court, no further proceedings shall be taken on complaint: Provided that no such withdrawal shall be ordered if trial in Court of first instance has been concluded. (3) In clause (b) of sub- section (1), term" Court" means Civil, Revenue or Criminal Court, and includes tribunal constituted by or under Central, Provincial or State Act if declared by that Act to be Court for purposes of this section. (4) For purposes of clause (b) of sub- section (1), Court shall be deemed to be subordinate to Court to which appeals ordinarily lie from appealable decrees or sentences of such former Court, or in case of Civil Court from whose decrees no appeal ordinarily lies, to principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate: 21 Provided that- (a) where appeals lie to more than one Court, Appellate Court of inferior jurisdiction shall be Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to Civil and also to Revenue Court, such Court shall be deemed to be subordinate to Civil or Revenue Court according to nature of case or proceeding in connection with which offence is alleged to have been committed. Section 195(1)(b) of Code, which is relevant for instant pursuit, prohibits taking of cognizance by court vis-a-vis offences mentioned in three clauses (i), (ii) and (iii) except on complaint in writing of Court when offence(s) is/are alleged to have been committed in or in relation to any proceeding before it or in respect of document produced or given in evidence in such proceeding or by such officer of that court as it may authorise in writing or by some other court to which court (in proceedings before which offence(s) has been committed) is subordinate. patently regulatory imposition in matter of lodging of complaint for such offences is discernible assuredly to obviate frivolous and wanton complaints by all and sundry. 42. Sub-section (3) of Section 195 clarifies that term Court would mean Civil, Revenue or Criminal court and would include tribunal constituted by or under Central, Provincial or State Act, if declared by that Act to be Court for purposes of this section. 22 43. In terms of sub-section (4), for purposes of sub-section (1) (b), Court shall be deemed to be subordinate to Court to which appeals ordinarily lie from appealable decrees or sentences of such former Court, or in case of Civil Court from whose decrees no appeal ordinarily lies, to principal Court having ordinary original civil jurisdiction within whose local jurisdiction, such Civil Court is situated. 44. proviso to sub-section (4) explains that where appeals lie to more than one Court, Appellate Court of inferior jurisdiction shall be Court to which such Court (in proceedings before which offence has been committed) shall be deemed to be subordinate and where appeals lie to Civil and also to Revenue Court, subordination would be determined by nature of case or proceeding, in connection with which offence is alleged to have been committed. 45. Noticeably Section 195 of Code appears under Chapter XIV enumerating conditions requisite for initiation of proceedings thereunder. Though Section 190 of Code outlines categories of inputs on which Magistrate of first class, and any Magistrate of second class specially empowered, can take cognizance of offence alleged, Section 195 dealing with prosecution for contempt of lawful authority of public servant and for offences against public justice or relating to documents given in evidence, unmistakably marks departure from usual modes of taking cognizance under Section 190 by prescribing restrictions as adverted to hereinabove. 46. That provisions of Section 195 of Code are mandatory so much so that non-compliance thereof would vitiate prosecution 23 and all consequential orders, has been ruled by this Court, amongst others in C. Muniappan and Others vs. State of Tamil Nadu (2010) 9 SCC 567 wherein following observations in Sachida Nand Singh and Another vs. State of Bihar and Another (1998) 2 SCC 493 were recorded with approval. 7.....Section 190 of Code empowers 'any Magistrate of First Class' to take cognizance of 'any offence' upon receiving complaint, or police report or information or upon his own knowledge. Section 195 restricts such general powers of Magistrate, and general right of person to move court with complaint is to that extent curtained. It is well-recognised canon of interpretation that provision curbing general jurisdiction of court must normally receive strict interpretation unless statute or context requires otherwise..... . (emphasis supplied). 47. There is thus no escape from proposition that for valid complaint under Section 195 of Code, mandate thereof has to be essentially abided and as is easily perceivable this is to prevent frivolous, speculative and unscrupulous allegations relating to judicial proceedings in any court, lest process of law is abused and public time is wasted in avoidable litigation. 48. That search operations did constitute proceeding under Act before income tax authority and that therefore same is deemed to be judicial proceeding within meaning inter alia of Sections 193 and 196 IPC and that every income tax authority for said purpose would be deemed to be civil court for purposes of Section 195 is not issue between parties. 24 49. essence of discord is competence of Deputy Director, Income Tax (Investigation)-I, Bhopal (M.P.) to lodge complaint. Whereas, according to appellants, he is not authority or forum before which appeals would ordinarily lie from actions/decisions of I.T.Os. who had recorded their statements, as mandated by Section 194(4) of Code, it is urged on behalf of respondent that having regard to overall scheme of Act, he indeed was possessed of appellate jurisdiction to maintain complaint. As nothing much turns on ingredients of offences under Sections 193,196,200 IPC qua issue to be addressed, detailed reference thereto is considered inessential. relevant provisions of Act next demand attention. 50. As enumerated under Section 116 of Chapter XIII of Act, Deputy Director of Income tax/Deputy Commissioner of Income Tax/Deputy Commissioner of Income Tax (Appeals) amongst others are designated income tax authorities. Section 118 authorises Central Board of Direct Taxes constituted under Central Board of Revenue Act, 1963 (hereinafter referred to as Board ) to direct by notification in official gazette that any income tax authority or authorities specified therein would be subordinate to such other income tax authority or authorities as may be specified in such notification. In course of arguments, such notification as contemplated has been laid before this Court and attention has been drawn to clause (e) thereof in following terms: Income-tax Officers shall be subordinate to Assistant Directors or Assistant Commissioners within whose jurisdiction they perform their 25 functions or other income-tax authority under whom they are appointed to work and to any other income tax authority to whom Assistant Director or Assistant Commissioner, as case may be, or other income tax authority is subordinate. 51. As would be evident from above extract, it deals exclusively with inter se subordination of authorities mentioned therein so much so that Income Tax Officers have been made subordinate to Assistant Directors or Assistant Commissioners within whose jurisdiction they perform their functions or other income tax authorities under whom they are appointed to work and to any other income tax authority to whom Assistant Director or Assistant Commissioner as case may be or other income tax authority is subordinate. Noticeably this clause does not spell out any territorial barriers but logically warrant some order/notification to activate functional mechanism in order to address institutional exigencies. 52. Our attention has not been drawn to any document to this effect. Additionally as well, decisive and peremptory prescription of Section 195(4) of Code is not merely levels of rank inter se but recognised appellate jurisdiction ordinarily exercised by authority or forum concerned for complaint to be validly lodged by it, if in given fact situation, initiation of prosecution is sought to be occasioned not by court in proceedings before which contemplated offence(s) had been committed, but by court to which ordinarily appeals therefrom would lie. 53. Considerable emphasis has been laid on behalf of respondent on provisions of Act outlining jurisdiction of 26 income tax authorities as encompassed in Sections 120 and 124 of Act in particular. Section 120 provides that income tax authorities would exercise all or any of powers and perform all or any of functions conferred on or as case may be assigned to such authorities under Act in accordance with such directions as Board may issue in this regard. factors to be taken note of by Board or any other income tax authority authorised by it for such purposes have also been prescribed. As necessary corollary, Board can also by general or special order and subject to such conditions, restrictions or limitations as may be specified therein, authorise such authorities as enumerated in sub-section (4) thereof to perform such functions, as may be assigned. 54. powers of assessing officer vested with jurisdiction as permitted by Section 120 of Act, extends as is clarified by Section 124, to any person carrying on business or profession, if place at which he carries on his business or profession is situated within limits of area over which such officer had been vested with jurisdiction or if person concerned carries on business in more places than one, if principal place of his business or profession is situated within area over which assessing officer has jurisdiction. In addition, such officer would have also jurisdiction in respect of any other person residing within area. Sub-section 3 of Section 124 debars person to call in question jurisdiction of assessing officer in eventualities as mentioned in sub-clauses (a) and (b) thereof. 55. power with regard to discovery, production of evidence etc. and officer empowered to exercise same has been dealt with in details in Section 131 of Act. procedure to be complied with in 27 conducting search and seizure has been delineated in Section 132 of Act. Seemingly, to this extent, parties are one and ad idem. 56. bone of contention lies in interpretation of Section 246 of Act in particular which is contained in Chapter XX dealing with Appeals and Revision. Whereas Section 246 catalogues orders of assessing officer other than those of Deputy Commissioner from which appeal would lie to Deputy Commissioner (Appeals), Section 246A lists orders from which appeal would lie to Commissioner (Appeals). Admittedly, categories of orders specified under Section 246(1) of Act do not include one stemming from any proceeding before assessing officer under Section 132 of Act pertaining to search or seizure. Noticeably though under Section 116 of Act, as referred to hereinabove, under clause (d) thereof, Deputy Director of Income Tax, Deputy Commissioner of Income Tax and Deputy Commissioner of Income Tax (Appeals) have been bracketed together, it is only Deputy Commissioner (Appeals), as is apparent from Section 246(1), who has been conferred with appellate jurisdiction to entertain appeals, albeit from specified orders passed by assessing officer as mentioned in that sub-section. Deputy Director of Income Tax in particular, has not been designated to be appellate authority or forum from such orders or any other order of assessing officer. Having regard to issue to be addressed, it is considered inessential to dilate on Section 246A which deals with appeals to Commissioner (Appeals). 57. Our attention has not been drawn to any provision of Act whereunder Deputy Director of Income Tax has been designated to 28 be authority or forum before whom appeal would lie from any order of any subordinate officer including I.T.O.. To reiterate, I.T.Os. are included in classes of income tax authorities as per Section 116 of Act and having regard to hierarchy designed, they are subordinate in rank to Deputy Director of Income Tax, Deputy Commissioner of Income Tax and Deputy Commissioner of Income Tax (Appeals). 58. On conjoint reading of above provisions of Act, it is thus patent that statute has not only identified income tax authorities but also has specified their duties and jurisdiction, territorial and otherwise. It has stipulated as well eventualities and pre-requisites, for exercise of such jurisdiction or performance of duties assigned to ensure effective and purposeful implementation of provisions thereof. These functional framework indubitably has been made for desired conduct of organisational affairs as legislatively intended. 59. word ordinary as defined in Blacks Law Dictionary, 10th Edition, reads thus: Ordinary: occurring in regular course of events; normal; usual. word ordinarily is derivative of this word (adverb) carrying same meaning. 60. word ordinarily therefore would denote developments which are likely to occur, exist or ensue in regular or normal course of events as logically and rationally anticipated even though not set out or expressed in categorical terms. This is compendious expression to encompass all events reasonably expected to occur in usual and 29 common course of occurrences and are expected to so happen unless prohibited, prevented or directed by some express and unexpected interventions to contrary. 61. As adverted to hereinabove, Section 195 of Code read as whole unambiguously impose restrictions in matter of lodgement of complaint qua offences as mentioned in sub-section (1)(b) thereof in particular and therefore as corollary, any interpretation for identifying court/authority/forum contemplated thereby to be competent has to be in furtherance of restraint and not in casual relaxation thereof. Consequently, therefore exposition of provisions of corresponding substantive law which designs forums or authorities and confers original and appellant jurisdiction has also to be in aid of underlying objectives of restrictions stipulated. Any postulation incompatible with restrictive connotations would be of mutilative bearing thereon and thus frustrate purpose thereof, consequence not approvable in law. To reiterate, Section 195 of Code clearly carves out exception to otherwise conferred jurisdiction on court under Section 190 to take cognizance of offence on basis of complaints/information from sources as enumerated therein. 62. Viewed in this context, in our estimate, notification issued under Section 118 of Act cannot be conceded overriding effect over scheme of statute designating appellate forums more particularly in absence of any order, circular, notification of any authority thereunder to that effect. Deputy Director of Income Tax for that matter, as framework of Act would reveal, has not been acknowledged to be appellate forum from any order or decision 30 of assessing officer/I.T.O., notwithstanding several other provisions with regard to conferment of various powers and assignments of duties on said office. In teeth of such mindful and unequivocal module of Act, recognition of Deputy Director of Income Tax to be forum to whom appeal would ordinarily lie from any decision or action of assessing officer/income tax officer would not only be inferential but would also amount to unwarranted judicial legislation by extrinsic additions and doing violence to language of law framed. On contrary, acceptance of Deputy Commissioner (Appeals) as forum to which appeal would ordinarily lie from order/decision of assessing officer/I.T.O., would neither be inconsistent with nor repugnant to any other provision of Act and certainly not incompatible with legislative scheme thereof. Mere silence in Section 246 of Act about any decision or order other than those enumerated in sub-section (1) thereof as appealable /decision to Deputy Commissioner (Appeals), does not ipso fact spell legislative prohibition in that regard and in our comprehension instead signifies affirmative dispensation. 31 63. It is trite law that there is no presumption that casus omissus exists and court should avoid creating casus omissus where there is none. It is fundamental rule of interpretation that courts would not feel gaps in statute, their functions being jus discre non facere i.e. to declare or decide law. In reiteration of this well-settled exposition, this Court in (2008) 306 ITR 277 (SC) Union of India and others vs. Dharmendar Textile Processors and others had ruled that it is well settled principle in law that court cannot read anything in statutory provision or stipulated provision which is plain and unambiguous. It was held that statute being in edict of Legislature, language employed therein is determinative of legislative intent. It recorded with approval observation in Stock v. Frank Johns (Tipton) Limited (1978) 1 All ER 948 (HL) that it is contrary to all rules of construction to read words into Act unless it is absolutely necessary to do so. observation therein that, rules of interpretation do not permit courts to do so unless provision as it stands meaningless or doubtful and that courts are not entitled to read words into Act of Parliament unless clear reason for it is to be found within four corners of statute, was underlined. It was proclaimed that casus omissus cannot be supplied by court except in case of clear necessity and that reason for is found in four corners of statute itself but at same time casus omissus should not be readily inferred and for that purpose, all parts of statute or section must be construed together and every clause of section should be construed with reference to context and other clauses thereof so that construction to be put on particular 32 provision makes consistent enactment of whole statute. 64. More recently this Court amongst others in Petroleum and Natural Gas Regulatory Board vs. Indraprastha Gas Limited and Others (2015) 9 SCC 209 had propounded that when legislative intention is absolutely clear and simple and any omission inter alia either in conferment of power or in ambit or expanse of any expression used is deliberate and not accidental, filling up of lacuna as perceived by judicial interpretative process is impermissible. This was in reiteration of proposition in Sree Balaji Nagar Residential Association vs. State of Tamil Nadu and Others (2015) 3 SCC 353 to effect that casus omissus cannot be supplied by court in situations where omissions otherwise noticed in statute or in provision thereof had been conscious legislative intendment. 65. judicial formulations on theme is so consistent and absolute in terms that no further dilation is essential. scheme of Act and legislative design being unreservedly patent in instant case, that it is plainly impermissible to acknowledge Deputy Director of Income Tax to be forum to which appeal would ordinarily lie from order/decision of assessing officer/I.T.O. present is thus not case where this Court can premise that statute suffers from casus omissus so as to recognise Deputy Director of Income Tax as such appellate forum. 66. In this persuasive backdrop, conferment of appellate jurisdiction on Deputy Commissioner of Appeals from orders/decisions of assessing officers as is apparent from Section 246 of Act, has to be construed as conscious statutory mandate. This is 33 more so as noticed hereinabove, Deputy Director of Income Tax, Deputy Commissioner of Income Tax and Deputy Commissioner of Income Tax (Appeals) have been otherwise placed at par in list of income tax authorities provided by Section 116 of Act. omission to either vest Deputy Director of Income Tax with appellate powers or to contemplate said post to be appellate forum from orders/decisions of assessing officers cannot thus be accidental or unintended. relevant provisions of Act pertaining to powers, duties and jurisdiction of various income tax authorities do not leave any room for doubt, in our estimate, to conclude otherwise. True it is, that Deputy Commissioner of Appeals has been construed in terms of Section 246 of Act to be appellate forum from orders as enumerated in sub-section (1) thereof, but in absence of any provision in statute nominating Deputy Director of Income Tax to be appellate forum for any order/decision of assessing officer/I.T.O., inevitable conclusion is that said authority i.e. Deputy Director of Income Tax cannot be construed to be one before whom appeal from any order/decision of any income tax authority, lower in rank would ordinarily lie. 34 67. Parliament has unmistakably designated Deputy Commissioner (Appeals) to be appellate forum from orders as enumerated under Section 246(1) of Act. This however, in our view, as observed hereinabove does not detract from recognition of this authority to be appellate forum before whom appeals from decisions of assessing officer or of officer of same rank thereto would generally and ordinarily lie even in contingencies not referred to in particular in sub section 1 of Section 246. This is more so, to reiterate, in absence of any provision under Act envisaging Deputy Director of Income Tax to be appellate forum in any eventuality beyond those contemplated in Section 246(1) of Act. Neither hierarchy of income tax authorities as listed in Section 116 of Act nor in notification issued under Section 118 thereof, nor their duties, functions, jurisdictions as prescribed by cognate provisions alluded heretobefore, permit deduction that in scheme of legislation, Deputy Director of Income Tax has been conceived also to be appellate forum to which appeals from orders/decisions of I.T.Os./assessing officers would ordinarily lie within meaning of Section 195(4) of Code. Deputy Director of Income Tax (Investigation)-I Bhopal, (M.P.), in our unhesitant opinion, therefore cannot be construed to be authority to whom appeal would ordinarily lie from decisions/orders of I.T.Os. involved in search proceedings in case in hand so as to empower him to lodge complaint in view of restrictive preconditions imposed by Section 195 of Code. complaint filed by Deputy Director of Income Tax, (Investigation)-I, Bhopal (M.P.), thus on overall analysis of facts of 35 case and law involved has to be held as incompetent. 68. cavil on competence of Court of Chief Judicial Magistrate, Bhopal to entertain complaint and take cognizance of offences alleged, though reduced to academic exercise, in view of above determination needs to be dealt with in passing. 69. In Y. Abraham Ajith (supra), issue of territorial jurisdiction of Trial Court in which complaint had been filed by respondent No. 2 under Sections 498A and 406 IPC, in face of Sections 177 and 178 of Code surfaced for scrutiny. defence raised plea that as no part of cause of action constituting alleged offence had arisen within jurisdiction of court before which complaint had been filed, it lacked competence to entertain same and conduct trial following submission of charge-sheet. complaint had disclosed that allegations levelled therein related to incident that had happened at her previous place of stay beyond territorial limits of court in which it had been filed. This Court after dilating on scope and purport of Sections 177 and 178 of Code as well as judicially expounded connotation of expression cause of action sustained objection to maintainability of complaint. It was noticed that there was no whisper of any allegation relatable to offences imputed at place of stay of complainant where complaint had been filed. It was thus held that no part of cause of action did arise within jurisdiction of Trial Court before which complaint had been filed and proceedings resultantly were quashed. 70. similar fact situation obtained in Bhura Ram (supra) also 36 involving offences under Sections 498A/406/147 IPC. In attendant facts, it being apparent that no part of cause of action for alleged offence had arisen or no part of offence had been committed within jurisdiction of court before which complaint had been filed, proceedings were quashed. 71. Both these decisions on territorial jurisdiction, to start with having regard to facts involved herein are distinguishable and are of no avail to appellants. As hereinbefore stated, appellants as assesses, had residences both at Bhopal and Aurangabad and had been submitting their income tax returns at Bhopal. search operations were conducted simultaneously both at Bhopal and Aurangabad in course whereof allegedly appellants, in spite of queries made, did not disclose that they in fact did hold locker located at Aurangabad. They in fact denied to hold any locker, either individually or jointly. locker, eventually located, though at Aurangabad, has perceptible co-relation or nexus with subject matter of assessment and thus returns filed by appellants at Bhopal which in turn were within purview of search operations. search conducted simultaneously at Bhopal and Aurangabad has to be construed as single composite expedition with common mission. Having regard to overall facts and accusation of false statement made about existence of locker in such joint drill, it cannot be deduced that in singular facts and circumstances, no part of offence alleged had been committed within jurisdictional limits of Chief Judicial Magistrate, Bhopal. 72. Chapter XIII of Code sanctions jurisdiction of criminal courts in inquries and trials. Whereas Section 177 of Code 37 stipulates ordinary place of inquiry and trial, Section 178 enumerates places of inquiry or trial. In terms of Section 179, when act is offence by reason of anything which has been done and of consequence which has ensued, offence may be inquired into or tried by court within whose local jurisdiction such thing has been done or such consequence has ensued. For immediate reference, Sections 177 and 178 are extracted hereinbelow. 177: Ordinary place of inquiry and trial Every offence shall ordinarily be inquired into and tried by court within whose local jurisdiction it was committed. 178: Place of inquiry or trial (a) When it is uncertain in which of several local areas offence was committed, or (b) where offence is committed partly in one local area and partly in another, or (c) where offence is continuing one, and continues to be committed in more local areas than one, or (d) where it consists of several acts done in different local areas, it may be inquired into or tried by court having jurisdiction over any of such local areas. 73. As would be evident from hereinabove, ordinarily every offence ought to be inquired into and tried by court within whose local jurisdiction it had been committed as is mandated by Section 177 of Code. Section 178, however marks departure contingent on eventualities as listed in clauses (a),(b), (c) and (d) of Section 178 to identify court that would have jurisdiction to try offences as contemplated therein. 38 74. Though concept of cause of action identifiable with civil action is not routinely relevant for determination of territoriality of criminal courts as had been ruled by this Court in Dashrath Rupsingh Rathod vs. State of Maharashtra and Another, (2014) 9 SCC 129, their Lordships however were cognizant of word ordinarily used in Section 177 of Code to acknowledge exceptions contained in Section 178 thereof. Section 179 also did not elude notice . 75. Be that as it may, on cumulative reading of Sections 177, 178 and 179 of Code in particular and inbuilt flexibility discernible in latter two provisions, we are of comprehension that in attendant facts and circumstances of case where to repeat, single and combine search operation had been undertaken simultaneously both at Bhopal and Aurangabad for same purpose, alleged offence can be tried by courts otherwise competent at both aforementioned places. To confine jurisdiction within territorial limits to court at Aurangabad would amount, in our view, to impermissible and illogical truncation of ambit of Sections 178 and 179 of Code. objection with regard to competence of Court of Chief Judicial Magistrate, Bhopal is hereby rejected. 76. inevitable consequence of determination in its entirety however is that complaint is unsustainable in law having been filed by authority, incompetent in terms of Section 195 of Code. 77. In result, appeal succeeds and impugned proceeding and order assailed are set-aside. respondent is 39 however left at liberty to take appropriate steps in matter, as available in law, if so advised. ..... ..J. (PINAKI CHANDRA GHOSE) ..J. (AMITAVA ROY) NEW DELHI; AUGUST 31, 2016. 40 ITEM NO.1-A COURT NO.9 SECTION IIA (For Judgment) SUPREME COURT OF INDIA RECORD OF PROCEEDINGS Criminal Appeal No.824/2016 (@Petition(s) for Special Leave to Appeal (Crl.) No(s). 1474/2012) (Arising out of impugned final judgment and order dated 20/12/2011 in MCRC No. 8819/2011 passed by High Court of M.P. at Jabalpur) BABITA LILA & ANR Appellant(s) VERSUS UNION OF INDIA Respondent(s) Date: 31/08/2016 This petition was called on for pronouncement of Judgment today. For Petitioner(s) Ms. Vithika Garg, Adv. Ms. Sangeeta Kumar,Adv. For Respondent(s) Mrs. Anil Katiyar,Adv. -- Hon'ble Mr. Justice Amitava Roy pronounced Reportable Judgment of Bench comprising Hon'ble Mr. Justice Pinaki Chandra Ghose and His Lordship. Leave granted. appeal succeeds and impugned proceeding and order assailed are set-aside in terms of signed Reportable Judgment. respondent is however left at liberty to take appropriate steps in matter, as available in law, if so advised. (VISHAL ANAND) (MADHU NARULA) COURT MASTER COURT MASTER (Signed Reportable Judgment is placed on file) 41 Babita Lila & Another v. Union of India