R R GAVIT Vs. SHERBANOO HASAN DAYA

JUDGEMENT

(1.) On the 19th October, 1983, Dy. Director of Inspection, Unit No. II, issued a warrant authorising complainant R.R. Gavit and another officer to search the residential premises of the accused-respondent No. 1 under section 132(4) of the Income-tax Act (hereinafter for brevity sake, referred to as the Act). They were also authorised to exercise all other power and functions under section 132 of the Act and the rules relating hereto. On the same day at 6.30 p.m. They went to the residence of the accused and recorded her statement on oath. Question No. 2 in the statement and the answer given to it by the accused was as follows :---

(2.) Shri Gumaste, the learned Counsel for the petitioner stated that during the course of the search the complainant was authorised to examine the accused on Oath. According to him, her statement was recorded under section 132(4) of the Act. She intentionally gave false evidence in a judicial proceeding within the meaning of section 136 of the Act. He further submitted that she was legally bound to state the truth before the complainant who was authorised by law to administer the Oath and hence the complainant has made out a prima facie case in the complaint. However, the Magistrate refused to issue process. Shri Gumaste relied on A.I.R. 1963 S.C. Page 1430 (Chandra Deo Singh v. Prakash Chandra Bose alias Chabi Bose and another) where the Supreme Court observed as follows :---

(3.) On the other hand, Shri Vakil, the learned Counsel for the respondent submitted that the officer authorised to take search must administer Oath and record the statement under section 132(4) of the Act only after the condition laid down in the said section has been fulfilled in order to invoke the power given under that section. On the plain reading of the said section, the authorised officer is empowered to examine on Oath during the course of a search only if that person is found to be in possession or control of any books of accounts, documents, money, bullion, jewellery or other illegal articles or things. The said section further says that the statement by such person during such examination may thereafter be used in any proceeding under the Act. According to Mr. Vakil, the complainant was empowered to administer Oath to the accused and examine her only in respect of the things found in her possession or control mentioned in the said section. The impugned statement for which she is charged was recorded under section 132(4) of the Act. If we carefully see the statement and the last questioning in, is abundantly clear that this statement was recorder before the search commenced and, therefore, an inference cannot be drawn that the impugned statement was recorded during the course of the search proceedings. He further submitted that the accused in this case is facing criminal proceedings and, therefore, the legal provisions must be very strictly construed. If on the face of the complaint and the documents relied upon, the offence is not disclosed, the Magistrate was right in dismissing the case. It was submitted by him that as the things mentioned in the section were not found in the possession or control of the accused, the officer who administered the Oath and questioned, has exceeded his right and therefore, the impugned statement cannot be the subject matter of the charge under section 181 or 193 of the Indian Penal Code. At this stage, Shri Gumaste drew my attention to section 7 of the Oaths Act under which also the requirement is that for administering the Oath the proceedings should be judicial. Hence, while appreciating his submission, the question to be considered is whether the officer was empowered to administer the Oath in the present case and whether the proceeding in question was judicial. He supported his contention by relying on A.I.R. 1960 S.C. Page 1113 (Vadilal Panchal v. Dattatraya Dulaji Ghandigaonkar and another) where the Supreme Court observed as under :