Thakur Hansda vs Mukhodi Hembram & Anr

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) of the Prevention of Corruption Act.

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 one company, in the name and style of M/s.

Finlick Distributors Pvt. Ltd., this petitioner issued notice to the said assessee

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

being the Income Tax Officer, abused his official position and passed an order

reducing the demand of Rs.92,41,970/- to Rs.93,350/-.

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 Company. He submits that from perusal of the

chargesheet, which deals with the investigation in relation to M/s. Finlick

Distributors 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 notice of hearing. It is also clear that it is Tapas Kumar

Dutta, who by abusing his official position, has set aside the original

assessment order. He submits that after setting aside the assessment order,

the matter was remanded for fresh decision and the petitioner being the

Income Tax Officer, took into consideration the observations and direction

made in the order passed by Tapas Kumar Dutta and thereafter passed the

reassessment order. 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 an order. He submits that the order, even if it is wrong, cannot be

said to have been passed with a malafide intention after taking bribe. He

submits that until and unless the Central Bureau of Investigation, in their

chargesheet, comes with a proof 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 has 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 company is concerned, learned counsel for

the petitioner submits that as the petitioner was giving a hearing of

reassessment, the mobile number of the concerned assessee was mentioned

in the respective file for which the assessee was 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. He lastly

submits that the petitioner has already superannuated on 30.11.2017 from

service.

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 order 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 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

cases in respect of each of the officials, over and above the companies

mentioned in the First Information Report, the officers have reassessed after

transfer of file from Kolkata. In the report it is mentioned that the petitioner may

be involved in 11 other reassessments, detail references whereof are not there

in the report. He cannot deny the fact that nothing like gold, cash 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 one company the petitioner has passed the order 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 was an Income Tax Officer and admittedly he has passed the re-

assessment order, by which the demand in respect of one of the companies,

i.e., M/s. Finlick Distributors Pvt. Ltd. was drastically reduced. The said order

was passed in terms of the provisions laid down in the Income Tax Act . The

Central Bureau of Investigation has made out a case that this order was

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 order and

has come to a conclusion that the said order was 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, so 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 the benefit has been

given 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 11 other cases, detail 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.