IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16187 of 2007 RAJESH KUMAR DAHLAN @ RAJESH KUMAR s/o Sri Ganpat Ram Resident of Mohalla Shivala Road, Khagaria, P.S.Khagaria Town, District Khagaria…. Petitioner. Versus 1.The State of Bihar. 2.Nagerndra Choudhary son of (not known to the petitioner) Commercial Tax Officer, Khagaria Circle, Khagaria, P.S.Khagaria, District Khagaria…. . . . . . . . . . . . . Opp. Party. ----------- For the Petitioner : Mr. Subodh Kumar Jha, Mr.Amrendra Kumar. Advocates. For the Opp.Party : Mr.Chaubey Jawahar, A.P.P. 6. 04.05.2009 Petitioner is supposed to be a Proprietor of M/s Nitin Mukesh, a firm located in the town of Khagaria and is a registered dealer as well. He wants quashing of a criminal proceeding as well as the order taking cognizance dated 21st April 2006 which arises out of Khagaria P.S.Case No.364 of 2004 under sections 367, 368,471 and 420 of the Indian Penal Code read with Section 49(3)D of the Bihar Finance Act, 1981,Part-I. The F.I.R. was lodged on 1st September 2004 by the Commercial Tax Officer, Khagaria Circle, Khagaria alleging therein that on 3rd August 2004 at about 3:00 P.M. Raj Dalda was being unloaded from a truck at the premises of the firm. An enquiry was made with regard to the goods and the documents like cash memo and bill etc. were asked from the petitioner. Petitioner produced certain documents and gave information that goods were being brought from Barauni, but when the fact was verified from Barauni it emerged that the petitioner had given wrong information with the object to commit theft of sales 2 tax. Further investigation was made by the Sales Tax Vigilance Wing of Purnea and on inspection 456 Jars and 98 Kartoons of Raj Dalda were found lying in the shop. It is also alleged that sale of Dalda had been effected between 3rd August 2004 and 4th August 2004 after taking tax of 9 per cent whereas Dalda was procured from Purnea and the petitioner could charge only 1 per cent, since it was intra-state sale and thereby a violation under Section 49(3)D of the Bihar Finance Act, 1981 was committed. The Police registered the F.I.R. in question and also charged the petitioner with some other substantive offences, some of which have been taken note of in the earlier part of the order. Thereafter order taking cognizance has been passed which has forced the petitioner to challenge the same in the present proceeding under Section 482 of the Code of Criminal Procedure. Learned counsel for the petitioner submits that no substantive offence under the Indian Penal Code are made out and for the offence under section 49(3) D of the Bihar Finance Act, 1981, which is special Act, Section 49(5)D of the Act categorically states that no court shall take cognizance of an offence under this part of Rules made therein, except with previous sanction of the Commissioner and no court inferior to that of a Magistrate of 1st Class shall try such offence. He submits that there is nothing on the record to shows that any kind of sanction had been obtained from the Commissioner or a 3 person duly authorized in this behalf and the order taking cognizance is a mechanical order, without recording any aspect of this matter. When an offence under the Special Act was made out, Police out of lack of knowledge and for ornamental purpose, added I.P.C. offences and that by itself would not be enough to prosecute the petitioner clubbing two provisions of law, one under the Indian Penal Code and the other under the Special Act. From perusal of the allegations made in the F.I.R. it is, at best, a case of sales tax evasion for which proceedings have already been initiated against the petitioner, liability has come to be fastened and the tax liability/penalty imposed which is still the subject matter of final adjudication in appeal. From the tenor of the allegation and the description of the background of the present case, there seems to be some force in the contention raised on behalf of petitioner. It was basically an allegation of evasion of sales tax or the liability of the petitioner to meet his obligation under the Bihar Finance Act, but it seems that since the case was lodged with the Police they also decided to add a few I.P.C. provisions to make the offences look serious. Keeping the fact that the sales tax authorities have already taken other steps for recovery of the so called evaded tax from the petitioner, the order taking cognizance cannot be allowed to stand more so, when there is breach of the provision of Section 49(5)D of the Bihar Finance Act, 1981. Since 4 ingredients of the I.P.C. provisions are not made out, petitioner has made out a case for interference. The application is allowed and the order taking cognizance dated 21sat April 2006 passed by the Chief Judicial Magistrate, Khagaria which arises out of Khagaria P.S.Case no.364 of 2004 stands quashed. Jay/ ( Ajay Kumar Tripathi,J )