A petition has been filed to challenge the order dated 02.01.2021 passed by the learned Judicial Magistrate which has sent a criminal case for investigation under Section 156(3) of the Criminal Procedure Code to the concerned Police Station.
Facts of the case
The petitioner is a sole proprietor of one M/S. Sentu Dey, which is registered under Tripura State Goods and Service Tax Act, 2017. On 27.11.2020, Superintendent of State Taxes, Bishalgarh, filed a complaint before the Sub-Divisional Magistrate, which alleged that the petitioner had under-declared the outward taxable turnover and paid less tax than he was liable to pay for the period starting from August 2017 onwards.
It is additionally expressed that the sizable interest of Rs.19.74 Crores inclusive of tax, interest, and penalty has been raised against the applicant out of which just a measure of Rs.1.18 Crores could be recuperated. Remaining the measure of Rs.18.55 Crores stays neglected. Notices were issued to the purchasing dealers of the petitioner, who conveyed to the department that they had already paid their taxes to the petitioner for the purchases made by them from the petitioner.
The complainant subsequently affirmed that the petitioner had gathered the charges from the buying vendors and had didn’t store something similar in the Government income. The petitioner was charged with the crime. The Sub-Divisional Magistrate, Bishalgarh ordered that the complaint may be registered as a CR Case and be transferred to the Court of JMFC, Bishalgarh. The learned Magistrate sent the case for examination after enlisting the objection as an FIR and required a report. In this request, the petitioner denounced the test in this appeal.
Arguments by the petitioner
Mr. Sankar Lodh, the learned counsel on behalf of the petitioner, stated that when the complaint was placed before the learned Magistrate, he had taken cognizance thereon. It was thereafter not open for him to call for an investigation. The complainant had not recently moved toward the police by documenting a grievance and therefore, the Magistrate couldn’t have straightforwardly sent the protest for examination. The counsel stated that the offense claimed against the petitioner is one culpable under Section 132 of the SGST Act, which is the unique resolution. The overall arrangements of IPC in such a case can’t be conjured.
Arguments by the respondent
Mr. Ratan Datta opposed the petition contending that the petitioner is alleged to have committed cognizable offenses. The Magistrate could call for a police examination. He had beforehand not taken insight into the offenses. He presented that this appeal isn’t viable. He depended on the choice of the Supreme Court if there should arise an occurrence of HDFC securities Restricted versus Province of Maharashtra.
Learned counsel further stated that assuming that a revision petition against the impugned order of the Magistrate is not maintainable, that would not prevent the High Court from examining the legality of the order under Section 482 of Cr.P.C. Furthermore the counsel stated that Concerning the contention of the complainant not having previously approached the police authorities before filing a written complaint before the Magistrate there is no validity.
The decision of the court
The court, while deciding, examined on a question that what amounts to the Magistrate taking cognizance of an offense for Section 190 of Cr.P.C. The court further stated various cases which dealt with this problem and several facts related to it. The court examined the ratio behind the order in conflict. It stated that after hearing the learned P.P. and after a perusal of the complaint, the learned Magistrate believed that before taking cognizance, the matter may be investigated by the police. The learned magistrate lost sight of the fact that the stage of taking cognizance had already been crossed on 27.11.2020 itself. Hence quashed the order allowing the petition but stated the Magistrate to further follow the law from the stage of taking cognizance of the offenses disclosed.
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