PRAHLAD RAI SARAF Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an application under Section 438, Criminal Procedure Code, for grant of anticipatory bail in Criminal Case No. 340 of 1986, pending trial in the Court of the Chief Judicial Magistrate (Economic Offences), Jaipur City, Jaipur, under Section 276C of the Income-tax Act, 1961 (hereinafter referred to as "the Act").

(2.) A complaint under Sections 276C, 276CC and 277 of the Act was filed in the Court of the Chief Judicial Magistrate (Economic Offences), Jaipur City, Jaipur, by the Income-tax Officer, Central Circle-II, against the petitioner. The learned Chief Judicial Magistrate, under his order, took cognizance of the offence and directed issuance of a non-bailable warrant so as to effect attendance of the petitioner to face trial. Apprehending his arrest, a petition was moved in the court of the learned Sessions Judge, Jaipur City, Jaipur, under Section 438, Criminal Procedure Code, which was rejected by order dated December 8, 1986.

(3.) SO far as the antecedents of the petitioner are concerned, there are no other criminal cases said to be pending against the petitioner. The offence under Sections 276C and 276CC is such of which cognizance can be taken by the Magistrate only when a complaint is filed by the Department. There- fore, it cannot be said that this is a cognizable offence as it requires a complaint to be filed by the Department before the Magistrate can take cognizance of the same. The search was conducted as far back as 1981, and the complaint was filed on September 12, 1985, and the arrest is sought to be made in December, 1986. The petitioner is a citizen of Jaipur and was available all this time for any enquiry by the Department. Therefore, there is nothing further to be enquired from him as the complaint has already been filed. He has also filed objections against the summary order under Section 311 of the Act which have not been decided even till today. An appeal has also been filed against the summary order which is still pending. A second appeal is also provided under the Act which can be filed before the Income-tax Appellate Tribunal. Therefore, the whole matter is sub-judice. Apart from this, the total amount of tax as required by the Department has also been deposited by the petitioner. Keeping in view the principles laid down by their Lordships of the Supreme Court regarding grant of anticipatory bail in the case of Gurbaksh Singh, AIR 1980 SC 1632, I am inclined to accept the bail application of the petitioner under Section 438, Criminal Procedure Code.