IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1335 OF 2000. WRIT PETITION NO.1335 OF 2000. WRIT PETITION NO.1335 OF 2000. Shri Subhash Hastimal Lodha. ..Petitioner. versus 1. The Union of India. 2. The State of Maharashtra. ..Respondents. .... Mr. V.P.Sawant, with Prabhakar Jadhav i/b. Mr.Y.R. Mehta, for the Petitioner. Mr. H.V.Mehta, for the Respondent No.1. Mr. D.P.Adsule, APP, for the Respondent-State. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 11TH AUGUST,2008. : 11TH AUGUST,2008. : 11TH AUGUST,2008. ORAL ORAL ORAL JUDGMENT : JUDGMENT : JUDGMENT : 1. Heard the learned Counsel appearing for the parties. The Petitioner has filed this Petition for quashing and setting aside the order dated 17th April 1998 passed by the learned Judicial Magistrate First Class, Pune by which the Petitioner was charged for commission of offences punishable under section 181 and section 193 read with section 191 of the Indian Penal Code. 2. With a view to appreciate the submissions made by the learned Counsel appearing for the parties, it will be necessary to refer to the facts of the case in brief. On 26th September 1988, the - 2 - Commissioner of Income Tax, Pune issued a warrant authorising the complainant and other officers of Income Tax Department to search the residential and business premises of the Petitioner. On 27th September 1988, the Complainant and other officers of the Income Tax Department carried out the search. It is stated that the search commenced at 12.05 p.m. on 27th September 1988 and the same was closed at 2.30 a.m. on 28th September 1988. This was the search taken in the business premises of the Petitioner. On 27th September 1988, a search of the residential premises of the Petitioner was commenced at 9.15 p.m. and the same was closed at about 2.10 a.m on 28th September 1988. On 27th September 1988 from 9.15 p.m. the statement of the Petitioner under section 132(4) of the Income Tax Act, 1961 (hereinafter referred to as "the said Act of 1961") was recorded till about 2.10 a.m. on 28th September 1988. In response to a question during recording of the said statement, the Petitioner disclosed of having two bank lockers and stated that apart from the two disclosed bank lockers, there were no lockers standing in his name. According to the case of the complainant, on 28th September 1988, the officers of the Income Tax Department discovered that the - 3 - Petitioner was possessing a third locker. Therefore, an order passed under section 279 (1) of the said Act of 1961 on 28th March 1989 directing the concerned Assistant Commissioner of Income Tax (the Complainant) to file a complaint against the Petitioner. Accordingly, the said Complainant filed a complaint in the Court of Judicial Magistrate, First Class, Pune, alleging commission of offences punishable under section 181 and section 193 (Part-II) read with section 191 of the Indian Penal Code. The learned Magistrate framed a charge against the Petitioner for offence punishable under section 193 read with section 191 of the Indian Penal Code alleging that a false statement was made by the Petitioner in his statement under section 132(4) of the said Act of 1961. The Petitioner was also charged under section 181 of the Indian Penal Code by alleging that though the Petitioner was legally bound by an oath to state the truth, he made a statement that he was possessing only two lockers which he knew was false. A Revision Application was filed by the Petitioner before the Sessions Court against the order dated 17th April 1998. By order dated 24th July 2000, the said Revision Application was rejected. - 4 - 3. The learned Counsel appearing for the Petitioner submitted that the object of the statement under section 132(4) of the said Act of 1961 is of seeking an explanation or information in respect of the documents, articles, things, etc. found during the search. He submitted that any reply given by the Assessee to any general question will not be a part of the statement of the assessee recorded under section 132(4) of the said Act of 1961. He submitted that in the facts of the case even according to the case of the complainant, the third locker maintained by the Petitioner was allegedly found after the search was over and after the statement of the Petitioner under section 132(4) of the said Act of 1961 was recorded. He placed reliance on a decision of the learned Single Judge of this Court in a case of Income Tax Officer v/s Smt. Sharbanoo Hasan Daya and Another [ 1986 (2) Bom.C.R.P.293 ]. He also placed reliance on the judgment of a learned Single Judge in the case of State of Maharashtra v/s. Ashok Nandlal Kela and Others [1998 Bom. C. R. (Cri.) 426]. He, therefore, submitted that no offence was made out against the Petitioner. - 5 - 4. The learned Counsel appearing for the Respondent supported the impugned orders and submitted that a false statement was made on oath by the Petitioner. He, therefore, submitted that no interference was called for. 5. I have considered the submissions. A true copy of the statement of the Petitioner recorded under section 132(4) of the said Act annexed to the Petition shows that the recording of the statement commenced at 9.15 p.m on 27th September 1988 and the recording was concluded at 2.10 a.m on 28th September 1988. Even according to the case of the Complainant, the search was completed early in the morning on 28th September 1988. In the complaint filed by the Complainant it is specifically averred that subsequent to the recording of the statement of the Petitioner, local inquiries were made by the Income Tax Department and it was found that the Petitioner was possessing one more bank locker. Reliance has been placed by the prosecution on the answer given by the Petitioner in response to question no.3. The original question and answer are in Marathi. The English translation of the same reads thus :- - 6 - "Q.3 Q.3 Q.3 :- :- :- State - What are the contents in each locker standing in the name of all the persons in your house ? Answer Answer Answer :- :- :- There is a Locker No.18 in the State Bank of India, Market Yard Branch Pune 37 in the joint name of myself and my wife Mrs.Sulabha Lodha. All the articles in this locker were brought home by taking out the same from the locker in front of Shri Sheladkar and inspection thereof was made there. Besides that, there is a locker No.119 in Rupee Co-op. Bank, Chinchwad Branch in the joint name of myself and my wife Sulabha Lodha. All the articles were also removed from this locker in front of Shri Sheladekar and were brought home and examination thereof was made there. Besides these lockers, there is no any bank locker in my name or in the name of my family members." 6. In the case of Smt. Sharbanoo Hasan Daya (supra), this Court considered section 132(4) as it existed prior to amendment carried out with effect from 1st April 1989 by the Direct Tax Laws - 7 - (Amendment) Act, 1987. After considering the object of section 132(4), the learned Single Judge held thus :- "I am of the view that the officer was empowered to examine the accused on Oath during the course of search only in the event the accused was found in possession or control of the things mentioned in the section. It is not disputed that her impugned statement was recorded at 6.30 p.m. i.e., before the search commenced. Therefore, I am in agreement with Shri Vakil that the complainant has exceeded his authority under the provisions of the said section by putting certain questions to the accused before commencing the search. Moreover, this power of examining her on Oath could have been exercised by him within the four corners of section 132(4) and not otherwise. To my mind the powers conferred by section 132(4) of Income-Tax Act have been misused in the present case. The power to The power to The power to interrogate interrogate interrogate on Oath conferred by section on Oath conferred by section on Oath conferred by section 132(4) 132(4) 132(4) is not for the purposes of general is not for the purposes of general is not for the purposes of general - 8 - investigation investigation investigation of the assets, but for the of the assets, but for the of the assets, but for the limited limited limited purpose of seeking explanation, on or purpose of seeking explanation, on or purpose of seeking explanation, on or information information information in respect of the documents, in respect of the documents, in respect of the documents, articles, articles, articles, things, found during the search. things, found during the search. things, found during the search. Thus Thus Thus the authorised officer has a limited the authorised officer has a limited the authorised officer has a limited power power power to to to make enquiries on Oath in respect of make enquiries on Oath in respect of make enquiries on Oath in respect of his his his findings from the search and he is not findings from the search and he is not findings from the search and he is not authorised authorised authorised to put questions in general. to put questions in general. to put questions in general. Therefore, the impugned statement is not a statement on Oath during the proceedings within the meaning of section 134(4) of the Act." (Emphasis added) 7. The decision of the learned Single Judge has been affirmed by the Apex Court in a Special Leave Petition. 8. This controversy was again dealt within the case in Ashok Nandlal Kela and Others (supra). After considering the aforesaid decision of this Court, the learned Single Judge held thus :- " The Income Tax Officer has admitted that before commencement of search, he has recorded the statements of the respondents on - 9 - oath and therefore, the statements are not recorded during the course of search. As held in the aforesaid case, the complainants exceeded his authority under the provisions of the said section by putting questions to the respondents before commencement of search. The power of examining the respondents on oath could have been exercised by him within the four corners of section 132 sub-section (4) of the Act and not otherwise. The The The power power power to interrogate on oath is conferred to interrogate on oath is conferred to interrogate on oath is conferred by by by section 132(4) is not for the purpose of section 132(4) is not for the purpose of section 132(4) is not for the purpose of general general general investigation of the assets, but for investigation of the assets, but for investigation of the assets, but for the the the limited limited limited purpose of seeking explanation or purpose of seeking explanation or purpose of seeking explanation or information information information in respect of documents, in respect of documents, in respect of documents, articles, articles, articles, or things found during the search. or things found during the search. or things found during the search. The The The offence punishable under section 181 of offence punishable under section 181 of offence punishable under section 181 of I.P.C. I.P.C. I.P.C. is also covered inasmuch as it is is also covered inasmuch as it is is also covered inasmuch as it is necessary necessary necessary that the person must be authorised that the person must be authorised that the person must be authorised by by by law to administer oath or affirmation and law to administer oath or affirmation and law to administer oath or affirmation and ififif oath is so administered, such person is oath is so administered, such person is oath is so administered, such person is legally legally legally bound bound bound by such oath or affirmation and by such oath or affirmation and by such oath or affirmation and ififif he makes a false statement which he knows he makes a false statement which he knows he makes a false statement which he knows or or or believes to be false then he is liable to believes to be false then he is liable to believes to be false then he is liable to be be be punished. punished. punished. As already pointed out above, - 10 - the search had admittedly not commenced and therefore, the Income-Tax Officer could not exercise the power of examining the respondent on oath under section 132(4) of the Indian Income-Tax Act and as such the respondents have not committed offence either under section 181 of the I.P.C. or under section 191 r/w. 193 I.P.C. and that being so, the learned Magistrate was justified in passing the impugned order for discharge." (Emphasis added) 9. In the present case, only after the search was completed, it was revealed that the Petitioner was allegedly possessing the third locker. The power of examining the Petitioner on oath could have been exercised only within the four corners of sub-section (4) of section 132 of the said Act. While recording the statement under section 132(4), the Petitioner could have been interrogated by the Respondent for recording the explanation in respect of books of accounts, documents, money, bullion, Jewllery and other valuable articles which were found during the search. However, putting general questions for general investigation of assets is not permissible - 11 - under section 132(4) of the said Act. Therefore, the statement of the Petitioner that besides the two lockers he was not holding any other locker cannot be a statement on oath in proceeding under section 132(4) of the said Act. 10. In the present case, even going by the order under section 279 (1) of the said Act, the third locker was found only after the search was completed. The amended provisions of the said Act cannot be considered as the amendment came into force long after the search. In the statement under section 132(4) of the said Act, the Petitioner was under no obligation to state that he was not possessing any other locker besides the two lockers found during the search. Therefore, the offence under section 181 and consequently under section 193 are not at all attracted. 11. Hence, the Petition must succeed and rule is made absolute in terms of prayer clause (b1). [ A.S.OKA, J.] A.S.OKA, J.] A.S.OKA, J.]