RANGANATHAN J SECOND ITO Vs. BHAVANI M S

JUDGEMENT

(1.) THE petitioners in both the applications are the complainants before the Judicial Magistrate, No. 1, Poonamallee, before whom they have filed two complaints against the respondent/accused who is one and the same person alleging the offences under sections 193, 420 read with section 511 of the Indian Penal Code and sections 276C(1) and 277 of the Income-tax Act, 1961, and upon doing so, cognizance of the said offences was taken by the learned magistrate in two different cases, namely, in C.C. Nos. 152 of 1984 and 153 of 1984. While the said case were pending before him at the stage above referred to - challenging the same and to quash both the cases, quash proceedings under section 482 of the Criminal Procedure Code were filed on behalf of the accused/respondent herein in this court. But, however, both resulted in total rejection. Consequently, the matter was about to be taken for trial. At this stage, it appears that a petition under section 245(2) of the Criminal Procedure Code has been filed on behalf of the accused/respondent herein before the learned judicial magistrate praying for the discharge of the accused. But at the same time, a petition on behalf of the petitioner herein under section 244 of the Code has also been filed requesting the learned magistrate to issue process as prayed on behalf of the petitioner by passing the following order :

(2.) THE brief facts leading to the filing of complaints involved in the above cases projected on behalf of the petitioner are stated as follows : THE accused in both the cases, Dr. Mrs. M.S. Bhavani, wife of A. Thanikachalam, Vijaya Reddiar Buildings, No. 35, M.T.H. Road, Avadi, Madras 54, has wilfully fabricated her account books for the period from April 1, 1981, to March 31, 1982, relevant for the income-tax assessment year 1982-83 by suppressing her real receipts in the receipt books maintained by her and handed over the same through her representative, an advocate, to the Assistant Director of Inspection (Investigation) of the Income-tax Department, in a proceeding before the income-tax authority and thereby committed the offence as aforesaid, under section 193 of the Indian Penal Code. It was also further alleged that she had attempted to cheat the Income-tax Officer wilfully and dishonestly by inducing him to deliver valuable property in the form of an income-tax assessment order for the said assessment year and thereby committed an offence under section 420 read with section 511 of the Indian Penal Code. THE further allegations project that she had attempted to evade tax, penalty and interest accrued thereon chargeable under the Income-tax Act attracting the offence under section 276C(1) of the Income-tax Act and that by filing a false income-tax return for the said assessment year 1982-83, it was alleged that she had committed an offence punishable under section 277 of the Income-tax Act, 1961. Since similar allegations pertaining to the offences are involved in both the cases, but, however, since they relate to a different period, two separate cases have been registered and taken on file by the learned magistrate as aforesaid.

(3.) THEN coming to section 245(1) of the Criminal Procedure Code, the very object and scheme provided under section 244(1) and (2) of the Criminal Procedure Code would be fortified and further qualified by sub-section (1) of section 245 of the Criminal Procedure Code. The language adumbrated in sub-section (1) "if, upon taking all the evidence referred to in section 244, the magistrate considers, for reasons to be recorded" would clearly emphasise the fact that before the learned magistrate decides whether there is a case or not for the prosecution, he shall record every evidence as provided under section 244 of the Criminal Procedure Code and he must give the reasons for such conclusion he has to arrive for the purpose of sub-section (2) of section 245 of the Code or to discharge as provided therein. The word "groundless" in sub-section (2) of section 245 of the Code would clearly mean that the evidence must be such that no conviction can be rested on it. A combined reading of the above sub-sections of law clinchingly enjoins the fact that the duty of the learned magistrate in recording such of the evidence, both oral and documentary, produced by the prosecution to be recorded is not only onerous but also a mandatory one, before passing the order of discharge or otherwise. If the sections of law above referred to are to be taken to mean in this way, perhaps, may be the proper interpretation, then there may not be any difficulty for the learned magistrate to pass the impugned order in the petition by the prosecution under section 244(2) of the Code to issue the process. However, he has overlooked the same. In short, without recording any evidence or ascertaining from any other documentary evidence, a petition filed on behalf of the accused praying for the discharge under section 245(2) of the Code cannot at all be entertained and cannot be even thought of for a moment.