Thairo Mahto vs The State of Jharkhand

The petitioner is an accused for allegedly committing an offence

punishable under Sections 120B, 511 of the Indian Penal Code, Sections 7, 12

and 13(2) read with Section 13(1)(d) and 15 of the Prevention of Corruption

Act, 1988.

The allegations in the first information report is that one Tapas

Kumar Dutta, Principal Commissioner of Income Tax, Ranchi entered into a

criminal conspiracy with other Income Tax Officers and other persons and

thereafter transferred the Income Tax Files of several assesses from Kolkata

to Ranchi and Hazaribagh. Further, as a part of the said conspiracy, re-

assessment was done in respect of the said companies, whose files were

transferred and thereafter huge tax benefits have been given to the said

assesses. It is alleged that the said benefits were given to the assesses for

which those assesses have paid huge amount by way of bribe.

On the basis of the aforesaid allegations, FIR was lodged against said

Tapas Kumar Dutta and all the other named accused persons including this

petitioner.

After completion of investigation, chargesheet has been filed in this

case, which has been brought on record.

This petitioner is an Income Tax Officer. The allegation against this

petitioner is that in respect of companies, in the name and style of (i) M/s. High

Rank Commodities Dealer Pvt. Ltd., (ii) M/s. Rexnos Trexim Pvt. Ltd., and (iii)

M/s. G.R.D. Finance Pvt. Ltd., this petitioner issued notices to the said

assessees and concluded the reassessment proceedings. It is alleged that the

petitioner being the Income Tax Officer, abused his official position and

passed orders reducing the demands in respect of (i) M/s. High Rank

Commodities Dealer Pvt. Ltd. from Rs.10,71,14,810/- to (-) 8,351/-; (ii) M/s.

Rexnos Trexim Pvt. Ltd. from Rs.1,05,40,130/- to Rs.2,230/-; and (iii) M/s.

G.R.D. Finance Pvt. Ltd. from Rs.1,05,45,630/- to Rs.27,22,540/-.

Learned counsel appearing on behalf of the petitioner submits that the

petitioner is an Income Tax Officer and has only passed the re-assessment

order after issuing notice to the assessee Companies. He submits that from

perusal of the chargesheet, which deals with the investigation in relation to (i)

M/s. High Rank Commodities Dealer Pvt. Ltd., (ii) M/s. Rexnos Trexim Pvt.

Ltd., and (iii) M/s. G.R.D. Finance Pvt. Ltd., it would be quite clear that the

investigating agency has found that this petitioner, on the directions of the

principal accused Tapas Kumar Dutta, issued notices of hearing to the said

assessees. It is also clear that it is Tapas Kumar Dutta, who by abusing his

official position, has set aside the original assessment orders. He submits that

after setting aside the assessment orders, the matters were remanded for

fresh decision and the petitioner being the Income Tax Officer, took into

consideration the observations and directions made in the orders passed by

Tapas Kumar Dutta and thereafter passed the reassessment orders. He

submits that there is no illegality in the action of the petitioner as because

being a quasi judicial authority, he has applied his mind and passed orders. He

submits that the orders, even if they are wrong, cannot be said to have been

passed with malafide intentions after taking bribe. He submits that until and

unless the Central Bureau of Investigation, in their chargesheet, comes with a

prima-facie finding that there was a quid pro quo, this petitioner cannot be

charged for committing any criminal offence. He submits that no cash,

valuables to connect with bribe have been recovered from the possession of

this petitioner as in the case of Tapas Kumar Dutta from whom huge cash,

gold etc. were recovered. It is submitted that the petitioner has been arrested

and is in custody since 07.09.2017. So far as the allegation of telephonic

conversation between the petitioner, Shri Tapas Kumar Dutta and some

representatives of the beneficiary companies is concerned, learned counsel for

the petitioner submits that as the petitioner was giving hearings of

reassessment, the mobile numbers of the concerned assessees were

mentioned in the respective files for which the assessees were noticed through

calling them by phone. He submits that this cannot be even a prima facie proof

to implicate that the petitioner had accepted bribe, when, in fact, it is an

admitted case that there is no material in the chargesheet to suggest that any

ill-gotten cash, gold or valuables were recovered from the petitioner. He

submits that in fact, the petitioner was arrested just a day before filing of the

chargesheet and since he has co-operated in the entire investigation and

chargesheet has already been filed in this case, there is no necessity of

custodial trial in this case.

Learned counsel appearing for the Central Bureau of Investigation,

submits that the petitioner is a part of a very big conspiracy, where benefits

have been given to different companies after re-assessing their original

assessment orders in a pre-planned manner. He submits that a huge loss has

been caused to the State Exchequer where the demands have been slashed

to a very negligible amount, and in some cases to NIL amount, by the Income

Tax Officers, including the petitioner, at the behest of Tapas Kumar Dutta. He

submits that the Central Bureau of Investigation, during investigation in respect

of the companies mentioned in the First Information Report, is of the view that

there are probabilities that similar type of benefits may have been provided by

the Income Tax Officers to other companies, as such they are investigating

that aspect also. He submits that pursuant to the last order passed by this

Court, Central Bureau of Investigation has handed over in a sealed cover the

information which was sought for, wherein they have mentioned the number of

reassessments over and above the companies mentioned in the First

Information Report, done by the petitioner and others after transfer of file from

Kolkata. In the report it is mentioned that the petitioner may be involved in 7

other cases, details references whereof are not there in the report. He cannot

deny the fact that nothing like ill-gotten cash, gold or other valuables have

been recovered from the petitioner to suggest quid pro quo, but submits that in

future something may surface. He submits that Call Details Record were

gathered by the Central Bureau of Investigation, which shows evidence of

telephonic conversation in between the petitioner, Tapas Kumar Dutta and

some representatives of the beneficiary company. He also admits that it is only

in respect of three companies the petitioner has passed the orders of re-

assessment, so far as the present FIR is concerned.

After going through the records and after hearing the parties, I find that

the petitioner is an Income Tax Officer and admittedly he has passed the re-

assessment orders, by which the demands in respect of companies, i.e., (i)

M/s. High Rank Commodities Dealer Pvt. Ltd., (ii) M/s. Rexnos Trexim Pvt.

Ltd., and (iii) G.R.D. Finance Pvt. Ltd. were drastically reduced. The said

orders were passed in terms of the provisions laid down in the Income Tax

Act . The Central Bureau of Investigation has made out a case that these

orders were passed without considering the relevant legal provisions and

contentions raised by the department. Thus, I find that the Central Bureau of

Investigation has challenged the legality, propriety and correctness of the said

orders and has come to a conclusion that the said orders were passed after

taking bribe. In the Chargesheet filed by the Central Bureau of Investigation,

there is nothing to suggest that any ill-gotten money or ill-gotten property or

valuables were recovered from the possession of this petitioner. Rather, the

Central Bureau of Investigation has very fairly submitted that no such things or

material have been recovered from the possession of this petitioner. It admits

that cash, gold and other tangible assets were recovered from the principal

accused and not from this petitioner. It is also apparent that this petitioner has

cooperated with the Central Bureau of Investigation during investigation as in

the affidavit filed by the Central Bureau of Investigation, it is clearly mentioned

that the petitioner has joined the investigation of the case as and when

required, but he did not cooperate as he did not disclose the income pertaining

to the crime and the proceeds thereto. To this the petitioner replied that as he

did not indulge in any corrupt practices, it was not possible for him to say

about the same. This suggests that the petitioner made himself available as

and when he was required to appear before the Central Bureau of

Investigation. Further, I find that the petitioner was arrested on 07.09.2017 and

the chargesheet was filed on the very next date. This also suggests that during

investigation, petitioner cooperated with the Central Bureau of Investigation,

otherwise, the Central Bureau of Investigation could have arrested the

petitioner much prior to filing of the chargesheet. So far as the contention of

the Central Bureau of Investigation that there may be other companies to

which same benefit has been extended, in a similar manner for which they are

also investigating, I find that in the affidavit, which has been filed in the sealed

cover, it has been mentioned that the petitioner may be involved in 7 other

cases, details references whereof are not there in the affidavit, but those cases

of re-assessment are not the subject matter of this FIR, which the Central

Bureau of Investigation has already investigated and filed chargesheet. This

also suggests that the investigation against the petitioner is absolutely

complete so far as the present FIR is concerned. Further, after closure of

investigation, there is no scope of presumption.

In this case the trial is mainly based on documentary evidence, which is

already there in the custody of Central Bureau of Investigation. The maximum

punishment that can be awarded to the petitioner is imprisonment for a term of

7 years under the Prevention of Corruption Act, 1988. Further, I find that the

petitioner has cooperated with the Central Bureau of Investigation during

investigation as he made himself available to the Central Bureau of

Investigation as and when required and was only taken into custody just a day

before the chargesheet was filed. Filing of chargesheet means completion of

investigation as there is nothing in the chargesheet that the investigation is

kept pending. There is no allegation against the petitioner that he will tamper

with the evidence or interfere with the trial if he is released on bail. Further

from the chargesheet I find that there are 94 chargesheet witnesses, 91

documents which include several files, transcripts etc. and 32 materials

exhibits including electronic evidences, which are to be exhibited in this case,

which clearly suggests that the evidence is too voluminous and trial will take

considerable time. Thus, keeping in view the ratio laid down by the Supreme

Court in Sanjay Chandra versus C.B.I., I am inclined to release the petitioner

on bail, but, on the following conditions: -

(i) Petitioner will be released on bail on furnishing bail bonds of Rs.2,00,000/- (Rupees Two Lakh) with two sureties of the like amount each to the satisfaction of the learned Special Judge, CBI, Ranchi in connection with RC-AC-1-2017A0003 [RC 03(A)/17(D)];

(ii) He shall remain present before the Trial Court on each and every date of hearing. If they want to remain absent on a particular date for any unavoidable circumstance or reason, the reasons of their absence should be communicated to the Court concerned well in advance;

(iii) He will intimate the Court of his present residential address along with documents in proof of the same and he will give an undertaking that without taking permission of the Court, he will not change his place of residence. In case he is forced to change his residence, he will furnish sufficient proof of his new residence and obtain permission from the Trial Court;

(iv) Petitioner will deposit his passport, if any, with the Court below;

(v) He will not dispute his identity as an accused in this case.

(vi) If any of the aforesaid conditions is violated and instance of such violation is brought to the notice of the Court, the Court may take appropriate action including that of cancelling the bail bonds of the petitioner;

(vii) Liberty is reserved with Central Bureau of Investigation to make a prayer for modification or recalling of the order if any of the aforesaid conditions is/are violated.

With these observations and conditions, this application stands

allowed.