Case: Amit Suresh Arya Vs. Central Bureau of Investigation, Through Police Station Inspector, Anti-Corruption Bureau, Nagpur & Others

Indira Jain, J. (Oral)1. By these applications under Section 482 of the Code of Criminal Procedure, applicants are seeking quashing of proceedings in Regular Criminal Case No.2303/2007 pending before the Chief Judicial Magistrate, Nagpur registered pursuant to the filing of charge-sheet bearing No.5/2007 dated 7.7.2007 in Crime No.RCNAG 2005A0012 for the offences punishable under Sections 120-B, 420, 468 and 471 of the Indian Penal Code.2. The facts giving rise to the applications may be stated, in brief, as under :(a) Applicants are proprietors of M/s. Eva Tex Private Limited, situated at M.I.D.C. Butibori, District-Nagpur. They applied for license for setting up a Private Bonded Warehouse at the premises of the firm. Vide their communication dated 5.2.2004, they informed the Customs and Central Excise department that machines have been installed and firm is ready to execute B-17 Bonds. The then Assistant Commissioner, Customs and Central Excise, Division-II, Nagpur Shri V.S. Kumbhare directed Shri V.P. Patki, the then Superintendent of Customs and Central Excise, Range-Butibori to carry out the verification of the premises of the unit. Shri Om Prakash Shirpurkar was the then Inspector of Customs and Central Excise, Range-Butibori.(b) On 1.3.2004, B-17 Bond was accepted by Shri V.S. Kumbhare from the applicants. Shri V.P. Patki issued CT-3 certificates in the name of firm to procure duty free Polyster Texurised Yarn/Roto Polyster Yarn from various units in the Domestic Tariff Area. Shri Shirpurkar has certified the receipt of raw material at the factory premises. Allegations against applicants are that after purchasing yarn they did not manufacture polyester fiber and did not transfer them to Export Oriented Unit (EOU) as per the terms and conditions agreed. They disposed of the yarn by evading excise duty to the extent of Rs.71 Lacs.(c) The officers of Customs and Central Excise department visited the unit of applicants on 1.7.2004. At the time of visit, they found that premises were closed since 9.6.2004. No stock of raw material or finished goods was found in the godown. The officers also did not notice number of machines installed in the unit, as informed by the applicants, vide their communication dated 5.2.2004. Both the applicants were interrogated from time to time and on 17.8.2004, they were arrested by the officers of the department of Customs and Central Excise. Criminal Complaint No.1955/2009 was filed by the Assistant Commissioner, Customs and Central Excise, Division-II, Nagpur before the Chief Juridical Magistrate, Nagpur under Sections 9, 9AA and 10 of the Central Excise Act, 1944 alleging therein that applicants intensionally evaded excise duty to the tune of Rs.72 Lacs by preparing bogus and forged documents, by showing fictitious transaction only on paper and by furnishing false information with a view to cheat the department and caused loss to government exchequer.(d) On 28.9.2005, on the basis of source information, non-applicant no.1 registered offences punishable under sections 120-B read with Sections 420, 467, 468 and 471 of the Indian Penal Code and Section 13 (2) read with Section 13 (1)(d) of the Prevention of Corruption Act, 1988 against the three officers of the Customs and Central Excise Department named above and both the applicants. The first information was lodged by Narasimha Komar, Superintendent of Police attached to non-applicant no.1. The allegations in FIR against the applicants are that they diverted the raw material to the Domestic Tariff Area and thereby caused loss of revenue to the tune of approximately Rs.70 Lacs by evading Customs and Central Excise duty on deemed imports to the Department of Customs and Central Excise, Nagpur and corresponding pecuniary gain to themselves in active connivance with officers of the Customs and Central Excise department, who misused their official position as a public servant by corrupt or illegal means and caused pecuniary loss to the tune of Rs.70 Lacs approximately to the Department.(e) In pursuance to the registration of FIR, investigation was set into motion. On completing investigation, charge-sheet no.5/2007 dated 7.7.2007 was presented before the learned Chief Judicial Magistrate, Nagpur. It came to be registered as Regular Criminal Case No.2303/2007. Being aggrieved by the registration of FIR and proceedings in Regular Criminal Case No.2303/2007, applicants have approached this court seeking interference in the extra-ordinary jurisdiction.(f) Vide order of this court dated 13.8.2015, Rule was issued and vide order dated 12.10.2015, stay to the proceedings in regular criminal case was granted. Non-applicant no.1-Central Bureau of Investigation (CBI) filed its reply and strongly resisted the applications. According to non-applicant no.1, as sanction to prosecute against the officers of Customs and Central Excise department was refused, charge-sheet came to be filed against the private persons, as it was established during investigation that applicants, as partners of the firm, not only evaded payable duty but also cheated the department in connivance with the officers of the department by preparing forged record and using the forged record as genuine knowing that the record was forged, which are the distinct offences under the Indian Penal Code and independent of action under the Customs and Central Excise Act. It is submitted that Criminal Complaint No.1955/2009 and the FIR in criminal proceedings under challenge are the distinct proceedings and cannot be treated as one and the same. In this premise, submission is that principle of double jeopardy on which applicants are placing reliance is misleading and in view of sufficient evidence collected during investigation of the crime registered against the applicants, interference in extra-ordinary jurisdiction is not warranted.3. We have heard the learned counsel for parties at length. Shri Shashank Manohar, learned counsel appearing on behalf of applicant in Criminal Application (APL) No.218/2015 raises manifold legal issues regarding maintainability of criminal proceedings. The submissions are :(i) In the absence of consent under Section 6 of the Delhi Special Police Establishment Act, 1946 (for short "The Delhi Act") from the State Government, officers of the Central Bureau of Investigation are not empowered to investigate the offences other than the offences under the Prevention of Corruption Act, 1988.(ii) In view of the previous complaint filed under the Customs and Central Excise Act, subsequent registration of FIR and initiation of criminal proceedings on identical set of facts is per se hit by the doctrine of double jeopardy.(iii) Considering the offences alleged, aggrieved person ought to have lodged the report and based on source information not disclosed at any time, complainant has no locus to lodge report alleging the offences of cheating, forgery etc.(iv) Company is not arraigned as an accused and without arraigning company as an accused, the prosecution against applicants is not maintainable.4. Learned counsel strenuously submitted that even on merits offences alleged in FIR are not at all attracted and prima facie there is no material to implicate the applicants in the offences alleged under the Indian Penal Code. Reliance is placed on the decision of the Honble Supreme Court in Mohammed Ibrahim and others v. State of Bihar and another, [(2009) 8 SCC 751].5. Per contra, learned Special Counsel for non-applicant no.1-CBI strenuously submitted that CBI derives the powers from the Delhi Act co-extensive with the powers, duties, privileges and liabilities with the members of the Delhi Special Police Establishment. On consent of the State Government, submission is that vide Notification dated 18.2.1963, Government of India extended the powers and jurisdiction of member of Delhi Special Police Establishment to State of Maharashtra for the investigation of offences specified in list, which includes the offences under Sections 120-B, 420, 467, 468 and 471 of the Indian Penal Code. Learned counsel states that Government of Maharashtra by its Notification dated 22.2.1989 accorded sanction under Section 6 of the Delhi Act for investigation of offences punishable under the Prevention of Corruption Act including offences involving attempts, abetments and conspiracies in the said offence or in connection with one or more of the said offences and any other offences committed in the course of the same transaction arising out of the same facts.6. On the principle of double jeopardy, learned counsel for CBI submitted that criminal proceeding and action under the Central Excise Act are the two distinct proceedings and they cannot be treated as one and the same. He submits that two different enactments takes care of violation of law in the similar set of facts and when actions are distinct and separate, principle of double jeopardy would not come to the rescue of applicants.7. Regarding locus, it is submitted that officer of CBI has lodged the report on the basis of source information and even on source information criminal law can be set into motion without disclosing the identity of the informant.8. So far as fourth objection raised by the applicants is concerned, learned counsel submitted that premises of the unit was inspected and it was revealed during enquiry that applicants not only evaded payment of duty but also committed several criminal acts attracting penal action. According to the learned counsel, in such circumstance, FIR was rightly lodged by the officer of non-applicant no.1 and question of locus would not arise.9. On merits, it is submitted that there is strong prima facie case against the applicants. The proceedings are pending before the courts and let the competent court to decide the criminal proceedings on its own merits. To substantiate his submission, learned counsel placed reliance on :(1) H.N. Rishbud and another v. State at Delhi, [AIR 1955 SC 196 ].(2) The State of Bombay v. S.L. Apte, 1956 SC OnLine Bom.133].(3) M. Balakrishna Reddy v. Director, CBI, New Delhi, [2008) 4 SCC 409. (4) V.K. Agarwal, Assistant Collector of Customs v. Vasantraj Bhagwanji Bhatia and others, [(1988) 3 SCC 467].10. We have given our anxious consideration to the rival submissions of the learned counsel for both the sides. We have also examined the relevant provisions of Delhi Act, Article 166 of the Constitution of India relating to conduct of business of the Government of the State and case law cited by both the parties. We are of the view that preliminary objections raised on behalf of the applicants are not sustainable though on merits, they succeed as ingredients of the offences under the Penal Law are not made out from the FIR, charge-sheet and the connecting papers thereto.11. So far as preliminary objections are concerned, we propose to consider each of them in chronological order as below :(i) In the absence of consent under Section 6 of Delhi Special Police Establishment Act, 1946 from the State Government, officers of the Central Bureau of Investigation are not empowered to investigate the offences other than the offences under the Prevention of Corruption Act, 1988 :The first and foremost ground to be considered is whether "consent" as envisaged by Section 6 of the Delhi Act has been given by the State Government of Maharashtra to the Central Government so as to enable the latter to invoke the provisions of the Delhi Act. For the said purpose, it is necessary to bear in mind the relevant provisions of the Delhi Act and the historical background in which enactment was brought into existence.The system which existed prior to the Delhi Act was that a Central Government Police Force was constituted in the Chief Commissioners province of Delhi and was functioning there. On the commencement of the Constitution, Entry 80 of the Union List in the Seventh Schedule to the Constitution took place of Entry 39 of the Federal Legislative list of the Seventh Schedule of the Government of India Act, 1935. In substance, Entry 80 of the Union List is the same, as Entry 39 of the Federal Legislative List of the Government of India Act. For the sake of convenience, Entry 80 of the Union List in the Seventh Schedule of the Constitution is reproduce here as under :80. Extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State, but not so as to enable the police of one State to exercise powers and jurisdiction in any area outside that State without the consent of the Government of the State in which such area is situated; extension of the powers and jurisdiction of members of a police force belonging to any State to railway areas outside that State.As the preamble of the Delhi Act states, it is an Act to make provision for the constitution of a Special Police Force in Delhi for the investigation of certain offences in the Union territories and for the extension to other areas of the powers and jurisdiction of the members of the said force with regard to the investigation of the said offences.Section 1 declares that the Act extends to the whole of India.Section 2 provides for Constitution and powers of Special Police Establishment.Section 3 enables the State Government to investigate offences by Special Police Establishment which reads thus :Section 3 : Offences to be investigated by Special Police Establishment.- The Central Government may, by notification in the Official Gazette, specify the offences or classes of offences which are to be investigated by the Delhi Special Police Establishment.Section 4 covers superintendence and administration of Special Police Establishment.Section 5 empowers the Central Government to extend the powers and jurisdiction of Special Police Establishment to States. The said section is also relevant and reproduced :Section 5 : Extension of powers and jurisdiction of Special Police Establishment to other areas .- (1) The Central Government may by order extend to any area (including Railway areas) in a State, not being a Union territory, the powers and jurisdiction of members of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a notification under section 3.(2) When by an order under sub-section (1) the powers and jurisdiction of members of the said police establishment are extended to any such area, a member thereof may, subject to any orders which the Central Government may make in this behalf, discharge the functions of a police officer in that area and shall, while so discharging such functions, be deemed to be a member of a police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force.(3) Where any such order under sub-section (1) is made in relation to any area, then, without prejudice to the provisions of subsection (2) any member of the Delhi Special Police Establishment of or above the rank of Sub-Inspector may subject to any orders which the Central Government may make in this behalf, exercise the powers of the officer in charge of a police station in that area and when so exercising such powers, shall be deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station.Section 6 is relevant in the present controversy which requires consent of the State Government for exercising powers and jurisdiction under the Act by Special Police Establishment to any area in a State not being Union Territory or Railways. The said section reads thus :Section 6 : Consent of State Government to exercise of powers and jurisdiction .- Nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union Territory or Railway area, without the consent of the Government of that State.12. From the cursory look at the above provisions, it is clear that for exercise of jurisdiction by CBI in a State, other than Union Territory or Railway area, consent of the State Government is necessary. In other words, before the provisions of the Delhi Act are invoked to exercise power and jurisdiction by Special Police Establishment in any State, the following conditions are prerequisite :(1) A notification must be issued by the Central Government specifying the offences to be investigated by Delhi Special Police Establishment, as required under Section 3.(2) An order must be passed by the State Government extending the powers and jurisdiction of Delhi Special Police Establishment to any State in respect of the offences specified under Section 3, as mentioned in Section 5.(3) Consent of the State Government must be obtained for the exercise of powers by Delhi Special Police Establishment in the State as per Section 6.13. So far as first two conditions are concerned, applicants do not dispute that they have been complied with. Notification dated 7.9.1989 issued by Under Secretary to the Government of India, Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training, New Delhi, is placed into service by the learned counsel for CBI and the same shows that CBI is empowered to investigate the offences punishable under Sections 120-B, 420, 467, 468 and 471 of the Indian Penal Code, which are alleged in FIR against the applicants. This indicates sufficient compliance of Section 3 of the Delhi Act. The principal question which has to be considered by us is, whether the consent contemplated by Section 6 of the Delhi Act has been given by the State of Maharashtra. According to the applicants, no such consent has been given by the State of Maharashtra. The counter argument on behalf of non-applicant no.1 is that such consent has been given by the State Government as is reflected in the order dated 22.2.1989, which reads thus :ORDERHome Department, MantralayaBombay - 400032Dated : 22nd February, 1989Delhi Special Police Establishment Act, 1946F. No. MIS-0189/CR-28/POL-3 - In pursuance of the provisions of section 6 of the Delhi Special Police Establishment Act, 1946 (25 of 1946), the Governor of Maharashtra hereby accords consent to the extension of powers and jurisdiction of the members of the Delhi Police Establishment to the whole of the State of Maharashtra, for investigation of offences punishable under the Prevention of Corruption Act, 1988 (49 of 1989), including offences involving attempts, abetments and conspiracies in the said offences and any other offences committed in the course of the same transaction arising out of the same facts. Sd/-(A.K. BHASWAT)Deputy Secretary to GovernmentConfidential ImmediateNo.MIS 0189/CR-28/POL-6 Home Department,Mantralaya,Bombay-400 032.Dated : 22nd February, 1989.14. Non-Applicant No.1-CBI filed additional reply-in-affidavit and along with additional reply, order dated 18.2.1963 issued by Government of India, Ministry of Home Affairs, New Delhi has been annexed. Vide this order, power and jurisdiction of members of the Delhi Special Police Establishment are extended to State of Maharashtra for investigation of offences under Sections 420, 467, 468 and 471 of the Indian Penal Code alleged against the applicants.15. From a closer scrutiny of the relevant provisions of the Delhi Act, it is crystal clear that Section 3 refers to "Notification" and requires the Central Government to issue notification specifying offences or classes of offences to be investigated by the Delhi Special Police Establishment. Section 5 uses the term "order" and empowers the Central Government to extend powers and jurisdiction of Special Police Establishment to other areas not covered by the Act. Section 6 speaks of consent of State Government for the exercise of powers and jurisdiction of the Delhi Special Establishment without referring to the term "notification" or "order". As Section 6 merely requires consent of the State Government for the application of the Delhi Act, in our considered view, by order dated 22.2.1989 State Government has given the consent as envisaged by Section 6 of the Delhi Act and prosecution instituted by CBI against the applicants cannot be said to be without jurisdiction. In the light of the above, we find that the issue of consent under Section 6 raised by the learned counsel for applicants is unsustainable in law.16. (ii) In view of the previous complaint filed under the Customs and Central Excise Act, subsequent registration of FIR and initiation of criminal proceedings on identical set of facts is per se hit by the doctrine of double jeopardy :The doctrine of double jeopardy is enshrined in Section 300 of the Code of Criminal Procedure and Section 26 of the General Clauses Act. Both the provisions imply expression "same offence". In order to attract the provisions of Section 300 of the Code of Criminal Procedure or Section 26 of the General Clauses Act, the ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain, whether two offences are same is not the identity of allegations but the identity of ingredients of the offence. The Honble Supreme Court elaborately dealt with the provisions contained in Section 300 of the Code of Criminal Procedure in State of Bihar v. Murad Ali Khan, (1988) 4 SCC 655. The relevant paragraphs are quoted herein below :"26. Broadly speaking, a protection against a second or multiple punishment for the same offence, technical complexities aside, includes a protection against re-prosecution after acquittal, a protection against re-prosecution after conviction and a protection against double or multiple punishment for the same offence. These protections have since received constitutional guarantee under Article 20(2). But difficulties arise in the application of the principle in the context of what is meant by same offence. The principle in American law is stated thus:The proliferation of technically different offences encompassed in a single instance of crime behaviour has increased the importance of defining the scope of the offence that controls for purposes of the double jeopardy guarantee.Distinct statutory provisions will be treated as involving separate offences for double jeopardy purposes only if "each provision requires proof of an additional fact which the other does not" (Blockburger v. United States). Where the same evidence suffices to prove both crimes, they are the same for double jeopardy purposes, and the clause forbids successive trials and cumulative punishments for the two crimes. The offences must be joined in one indictment and tried together unless the defendant requests that they be tried separately......27. The expression the same offence, substantially the same offence in effect the same offence or practically the same, have not done much to lessen the difficulty in applying the tests to identify the legal common denominators of same offence. Friedland in Double Jeopardy (Oxford 1969) says at p.108:The trouble with this approach is that it is vague and hazy and conceals the thought processes of the court. Such an inexact test must depend upon the individual impressions of the judges and can give little guidance for future decisions. A more serious consequence is the fact that a decision in one case that two offences are "substantially the same" may compel the same result in another case involving the same two offences where the circumstances may be such that a second prosecution should be permissible....28. In order that the prohibition is attracted the same act must constitute an offence under more than one Act. If there are two distinct and separate offences with different ingredients under two different enactments, a double punishment is not barred. In Leo Roy Frey v. Superintendent, District Jail, the question arose whether a crime and the offence of conspiracy to commit it are different offences. This Court said : (AIR p. 121, para 4 : SCR p.827)4.......The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences. "17. In the instant case, submission of applicants is that on identical set of facts complaint under the provisions of Central Excise Act has been instituted and on the same set of allegations, offences under the Penal Law have been invoked. On perusal of copy of complaint No.1955/2009, it can be seen that the complaint is under Sections 9, 9AA and 10 of the Central Excise Act, 1944. The prayer is to prosecute the accused under these sections. For ready reference the provisions of Sections 9, 9AA and 10 are referred below :Section 9 : Offences and penalties .-(1) Whoever commits any of the following offences, namely: -(a) contravenes any of the provisions of section 8 or of a rule made under clause (iii) or clause (xxvii) of sub-section (2) of section 37;(b) evades the payment of any duty payable under this Act;(bb) removes any excisable goods in contravention of any of the provisions of this Act or any rules made thereunder or in any way concerns himself with such removal;(bbb) acquires possession of, or in any way concerns himself in transporting, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under this Act or any rule made thereunder;(bbbb) contravenes any of the provisions of this Act or the rules made thereunder in relation to credit of any duty allowed to be utilised towards payment of excise duty on final products;(c) fails to supply any information which he is required by rules made under this Act to supply, or (unless with a reasonable belief, the burden of proving which shall be upon him, that the information supplied by him is true) supplies false information;(d) attempts to commit, or abets the commission of, any of the offences mentioned in clauses (a) and (b) of this section;shall be punishable, -(i) in the case of an offence relating to any excisable goods, the duty leviable thereon under this Act exceeds fifty lakh of rupees, with imprisonment for a term which may extend to seven years and with fine :Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court such imprisonment shall not be for a term of less than six months;(ii) in any other case, with imprisonment for a term which may extent to three years or with fine or with both.(2) If any person convicted of an offence under this section is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine :Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court such imprisonment shall not be for a term of less than six months.(3) For the purposes of sub-sections (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than six months, namely :-(i) the fact that the accused has been convicted for the first time for an offence under this Act;(ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods in relation to such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence;(iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party in the commission of the offence;Section 9AA : Offences by companies.- (1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.Explanation. - For the purposes of this section, -(a) "company" means any body corporate and includes a firm or other association of individuals; and(b) "director" in relation to a firm means a partner in the firm.Section 10 : Power of Courts to order forfeiture. -Any Court trying an offence under this Chapter may order the forfeiture to Government of any goods in respect of which the Court is satisfied that an offence under this Chapter has been committed, and may also order the forfeiture of any receptacles, packages or coverings in which such goods are contained and the animals, vehicles, vessels or other conveyances used in carrying the goods and any implements or machinery used in the manufacture of the goods.18. So far as proceedings in Regular Criminal Case No.2303/2007 arising out of Charge-sheet No.5/2007 in Crime No.RCNAG 2005A0012 are concerned, the same is for the offences punishable under Sections 120-B, 420, 468 and 471 of the Indian Penal Code. Needless to state that the offences alleged in FIR are the distinct and separate offences against the same persons and even if they are appearing to be identical to the allegations in complaint under the Central Excise Act, cannot be said to be hit by the doctrine of double jeopardy, as they are not the same offence. As such, in our opinion, provisions of Section 300 of the Code of Criminal Procedure and Section 26 of the General Clauses Act are not attracted in the facts of the present case and we find that second objection raised by the learned counsel for the applicants holds no water.19. (iii) Considering the offences alleged, aggrieved person ought to have lodged the report and based on source information not disclosed at any time, complainant has no locus to lodge report alleging the offences of cheating, forgery etc.:Another ground on which criminal prosecution is assailed is regarding the locus of complainant to lodge the complaint. Submission of the applicants is that FIR is lodged on the basis of source information which has never been disclosed at any time and for the offences particularly of cheating and forgery, it was incumbent on the prosecution agency to disclose the source of information and the name of informant. In support thereof, reliance is placed on the decisions of the Honble Supreme Court in Joseph Salvaraja v. State of Gujarat and others, (2011) 7 SCC 59 and Mohammed Ibrahim and others v. State of Bihar and another, (2009) 8 SCC 751. 20. On going through both the decisions of the Honble Supreme Court, it can be seen that the facts were not identical to the present controversy and in the given facts and circumstances of the case, the Honble Supreme Court in the first case held that FIR was an abuse of process of law, dispute was purely of civil nature, commission of criminal offence to wreak vengeance was alleged and in such a case refusal of High Court to quash FIR under Section 482 of the Code of Criminal Procedure with liberty to file discharge application was to be quashed and set aside.In another decision, the observations of Honble Supreme Court were that criminal courts should ensure that criminal proceedings are not misused for settling scores or pressurising parties to settle civil disputes. The ingredients of the offence of cheating and forgery defined under Section 415 and punishable under Section 420 of the Indian Penal Code, came to be reiterated by the Honble Supreme Court in the said case.21. In the case on hand, FIR has been lodged by Superintendent of Police, CBI, Nagpur. Learned counsel refers to the provisions of Section 39 of the Code of Criminal Procedure and attempts to demonstrate that offences relating to cheating and forgery are not covered by this provision and, therefore, it was incumbent on the aggrieved person to come forward and lodge report. Section 39 requires public to give information of certain offences and speaks that every person aware of the commission of, or of the intention of any other person to commit any offence punishable under the section mentioned in Section 39 shall forthwith give information to the nearest Magistrate or public officer of such commission or intention. The offences under Sections 420, 468 and 471 of the Indian Penal Code are cognisable. As these offences are cognisable, offence alleged under Section 120-B of the Indian Penal Code is also cognisable. Section 154 of the Code of Criminal Procedure relates to information in cognisable cases. The provisions of Section 154 of Cr.P.C. read thus :154. Information in cognisable cases.-(1) Every information relating to the commission of a cognisable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognisable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.22. The proposition of law relating to information in cognisable cases is well settled and any person orally or in writing can set criminal law into motion. In this background, we do not find any infirmity regarding the locus to lodge the report. The third contention raised by the learned counsel for the applicants is, therefore, negatived in the above background.23. (iv) Company is not arraigned as an accused and without arraigning company as an accused, the prosecution against applicants is not maintainable :One of the grounds on which criminal prosecution is attacked is that company is not arraigned as an accused and prosecution is launched only against the Directors of the Company. To substantiate the submission, reliance is placed on the decision of the Honble Supreme Court in Aneeta Hada v. Godfather Travels and Tours Private Limited, (2012) 5 SCC 661. The dispute in this case was under Section 138 of the Negotiable Instruments Act, 1881. Company was not arraigned as an accused and only officers of company were implicated. The Honble Supreme Court held that a distinction must be borne in mind between cases where a company had not been made an accused and the one where despite making it an accused, it cannot be proceeded against because of a legal bar. Criminal liability on account of dishonour of cheque in the case before the Supreme Court was primarily on drawer company and extended to its officers only when conditions incorporated in Section 141 of the Negotiable Instruments Act could be satisfied. In this background, the Honble Supreme Court held that for maintaining prosecution under Section 141, arraigning of company as an accused is imperative.24. In the present case, allegations of cheating and forgery are in the personal capacity of the applicants. The offences alleged being under the penal law element of mens rea also needs to be considered. The question of company sharing the criminal liability with its officers cannot be said to be imperative in the present set of facts and circumstances and particularly in view of the offences alleged against the applicants. The facts are distinguishable. We, therefore, do not find any merit in this contention also raised by the learned counsel for the applicants.On Merits25. Next question that now remains for consideration is whether FIR, charge-sheet, and connecting papers thereto make out a case against the applicants to proceed for the offences alleged against them. It is significant to note that allegations of criminal conspiracy have been levelled against the applicants and three officers of the Central Excise and Customs Department named above. It is the case of prosecution that applicants - both the Directors of M/s. Eva Tex Private Limited, diverted the material to the domestic tariff area and by the aforesaid acts, caused loss of revenue to the tune of Rs.71 Lacs by evading customs and central excise duty. So far as the loss of revenue is concerned, officer of Central Excise has instituted the complaint under Sections 9, 9AA and 10 of the Central Excise Act, 1944. When it comes to criminal prosecution and particularly offence under Section 120-B of the Indian Penal Code, allegations against applicants are that in connivance with the officers of Customs and Central Excise, they forged the documents, cheated the department by using the forged documents as genuine knowing them that they are forged. It is pertinent to note that the officers of Customs and Central Excise against whom allegations made in FIR were also involved in the offences under the Prevention of Corruption Act, 1988. The sanction to prosecute those officers came to be refused by the sanctioning authority vide order dated 9.11.2006. After considering the entire material placed before the sanctioning authority, the said authority observed that CBI has not adduced any evidence about the connivance of the officers with the unit in perpetrating this fraud. Though it was further observed that officers were surely negligent and lackadaisical in their duties but in the absence of reasonable and cogent evidence, authority found that it may not be correct to show that they entered into criminal conspiracy warranting prosecution against them.26. We have perused the contents of FIR lodged on 28.9.2005. The offence occurred is in the year 2004. The Central Excise Department has already taken care of by instituting a complaint an evasion of Customs and Excise duty. The grievance made in the complaint by Central Excise Department are almost identical to the allegations in FIR. We have already held above that the doctrine of double jeopardy would not be attracted in the present case, but since the allegations are almost common and particularly the sanctioning authority did not find any evidence on close scrutiny, we find that continuance of the criminal prosecution against the applicants would be nothing but an abuse of process of law. Hence, on merits applicants do succeed and accordingly we pass the following order :

Decision:
1[ds]10. We have given our anxious consideration to the rival submissions of the learned counsel for both the sides. We have also examined the relevant provisions of Delhi Act, Article 166 of the Constitution of India relating to conduct of business of the Government of the State and case law cited by both the parties. We are of the view that preliminary objections raised on behalf of the applicants are not sustainable though on merits, they succeed as ingredients of the offences under the Penal Law are not made out from the FIR,and the connecting papers thereto.From a closer scrutiny of the relevant provisions of the Delhi Act, it is crystal clear that Section 3 refers to "Notification" and requires the Central Government to issue notification specifying offences or classes of offences to be investigated by the Delhi Special Police Establishment. Section 5 uses the term "order" and empowers the Central Government to extend powers and jurisdiction of Special Police Establishment to other areas not covered by the Act. Section 6 speaks of consent of State Government for the exercise of powers and jurisdiction of the Delhi Special Establishment without referring to the term "notification" or "order". As Section 6 merely requires consent of the State Government for the application of the Delhi Act, in our considered view, by order dated 22.2.1989 State Government has given the consent as envisaged by Section 6 of the Delhi Act and prosecution instituted by CBI against the applicants cannot be said to be without jurisdiction. In the light of the above, we find that the issue of consent under Section 6 raised by the learned counsel for applicants is unsustainable in law.So far as proceedings in Regular Criminal Case No.2303/2007 arising out ofNo.5/2007 in Crime No.RCNAG 2005A0012 are concerned, the same is for the offences punishable under Sections, 468 and 471 of the Indian Penal Code.Needless to state that the offences alleged in FIR are the distinct and separate offences against the same persons and even if they are appearing to be identical to the allegations in complaint under the Central Excise Act, cannot be said to be hit by the doctrine of double jeopardy, as they are not the same offence. As such, in our opinion, provisions of Section 300 of the Code of Criminal Procedure and Section 26 of the General Clauses Act are not attracted in the facts of the present case and we find that second objection raised by the learned counsel for the applicants holds no water.19. (iii) Considering the offences alleged, aggrieved person ought to have lodged the report and based on source information not disclosed at any time, complainant has no locus to lodge report alleging the offences of cheating, forgery etc.:Another ground on which criminal prosecution is assailed is regarding the locus of complainant to lodge the complaint. Submission of the applicants is that FIR is lodged on the basis of source information which has never been disclosed at any time and for the offences particularly of cheating and forgery, it was incumbent on the prosecution agency to disclose the source of information and the name of informant. In support thereof, reliance is placed on the decisions of the Honble Supreme Court in Joseph Salvaraja v. State of Gujarat and others, (2011) 7 SCC 59   and Mohammed Ibrahim and others v. State of Bihar and another, (2009) 8 SCC 751. 20. On going through both the decisions of the Honble Supreme Court, it can be seen that the facts were not identical to the present controversy and in the given facts and circumstances of the case, the Honble Supreme Court in the first case held that FIR was an abuse of process of law, dispute was purely of civil nature, commission of criminal offence to wreak vengeance was alleged and in such a case refusal of High Court to quash FIR under Section 482 of the Code of Criminal Procedure with liberty to file discharge application was to be quashed and set aside.In another decision, the observations of Honble Supreme Court were that criminal courts should ensure that criminal proceedings are not misused for settling scores or pressurising parties to settle civil disputes. The ingredients of the offence of cheating and forgery defined under Section 415 and punishable under Section 420 of the Indian Penal Code, came to be reiterated by the Honble Supreme Court in the said case.21. In the case on hand, FIR has been lodged by Superintendent of Police, CBI, Nagpur. Learned counsel refers to the provisions of Section 39 of the Code of Criminal Procedure and attempts to demonstrate that offences relating to cheating and forgery are not covered by this provision and, therefore, it was incumbent on the aggrieved person to come forward and lodge report. Section 39 requires public to give information of certain offences and speaks that every person aware of the commission of, or of the intention of any other person to commit any offence punishable under the section mentioned in Section 39 shall forthwith give information to the nearest Magistrate or public officer of such commission or intention. The offences under Sections420, 468 and 471 of the Indian PenalCode are cognisable. As these offences are cognisable, offence alleged under Sectionof the Indian Penal Code is also cognisable. Section 154 of the Code of Criminal Procedure relates to information in cognisable cases. The provisions of Section 154 of Cr.P.C. read thus :154. Information in cognisableEvery information relating to the commission of a cognisable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.(2) A copy of the information as recorded under(1) shall be given forthwith, free of cost, to the informant.(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in(1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognisable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.22. The proposition of law relating to information in cognisable cases is well settled and any person orally or in writing can set criminal law into motion. In this background, we do not find any infirmity regarding the locus to lodge the report. The third contention raised by the learned counsel for the applicants is, therefore, negatived in the above background.23. (iv) Company is not arraigned as an accused and without arraigning company as an accused, the prosecution against applicants is not maintainable :One of the grounds on which criminal prosecution is attacked is that company is not arraigned as an accused and prosecution is launched only against the Directors of the Company. To substantiate the submission, reliance is placed on the decision of the Honble Supreme Court in Aneeta Hada v. Godfather Travels and Tours Private Limited, (2012) 5 SCC 661.  The dispute in this case was under Section 138 of the Negotiable Instruments Act, 1881. Company was not arraigned as an accused and only officers of company were implicated. The Honble Supreme Court held that a distinction must be borne in mind between cases where a company had not been made an accused and the one where despite making it an accused, it cannot be proceeded against because of a legal bar. Criminal liability on account of dishonour of cheque in the case before the Supreme Court was primarily on drawer company and extended to its officers only when conditions incorporated in Section 141 of the Negotiable Instruments Act could be satisfied. In this background, the Honble Supreme Court held that for maintaining prosecution under Section 141, arraigning of company as an accused is imperative.24. In the present case, allegations of cheating and forgery are in the personal capacity of the applicants. The offences alleged being under the penal law element of mens rea also needs to be considered. The question of company sharing the criminal liability with its officers cannot be said to be imperative in the present set of facts and circumstances and particularly in view of the offences alleged against the applicants. The facts are distinguishable. We, therefore, do not find any merit in this contention also raised by the learned counsel for theis significant to note that allegations of criminal conspiracy have been levelled against the applicants and three officers of the Central Excise and Customs Department named above. It is the case of prosecution that applicantsboth the Directors of M/s. Eva Tex Private Limited, diverted the material to the domestic tariff area and by the aforesaid acts, caused loss of revenue to the tune of Rs.71 Lacs by evading customs and central excise duty. So far as the loss of revenue is concerned, officer of Central Excise has instituted the complaint under Sections 9, 9AA and 10 of the Central Excise Act, 1944. When it comes to criminal prosecution and particularly offence under Sectionof the Indian Penal Code, allegations against applicants are that in connivance with the officers of Customs and Central Excise, they forged the documents, cheated the department by using the forged documents as genuine knowing them that they are forged. It is pertinent to note that the officers of Customs and Central Excise against whom allegations made in FIR were also involved in the offences under the Prevention of Corruption Act, 1988. The sanction to prosecute those officers came to be refused by the sanctioning authority vide order dated 9.11.2006. After considering the entire material placed before the sanctioning authority, the said authority observed that CBI has not adduced any evidence about the connivance of the officers with the unit in perpetrating this fraud. Though it was further observed that officers were surely negligent and lackadaisical in their duties but in the absence of reasonable and cogent evidence, authority found that it may not be correct to show that they entered into criminal conspiracy warranting prosecution against them.26. We have perused the contents of FIR lodged on 28.9.2005. The offence occurred is in the year 2004. The Central Excise Department has already taken care of by instituting a complaint an evasion of Customs and Excise duty. The grievance made in the complaint by Central Excise Department are almost identical to the allegations in FIR. We have already held above that the doctrine of double jeopardy would not be attracted in the present case, but since the allegations are almost common and particularly the sanctioning authority did not find any evidence on close scrutiny, we find that continuance of the criminal prosecution against the applicants would be nothing but an abuse of process of law.