Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 824 of 2016, Judgment Date: Aug 31, 2016


                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL  NO.824 OF 2016
               [ARISING OUT OF S.L.P. (CRL) NO. 1474 OF 2012]


BABITA LILA & ANOTHER                                   ....APPELLANTS

                                  VERSUS

UNION OF INDIA                                           …..RESPONDENT

                                JUDGMENT

AMITAVA ROY, J.

      Leave granted
2.    Being aggrieved by the rejection of their challenge to the  initiation
of their prosecution under Sections 109/191/193/196/200/420/120B/34  IPC  on
the basis of  a  complaint  made  by  the  Deputy  Director  of  Income  Tax
(Investigation)-I, Bhopal (M.P.), both on the ground of lack  of  competence
of the complainant and of jurisdiction of the Trial  Court  at  Bhopal,  the
appellants seek the remedial intervention of this Court  under  Article  136
of the Constitution of India.
3.          The  appellants,  who  are  husband  and wife, are residents  of
both Bhopal and  Aurangabad.   A  search  operation  was  conducted  by  the
authorities under the Income Tax Act, 1961 (for short, hereinafter  referred
to as “the Act”) on 28.10.2010 at both the residences of the appellants,  in
course whereof their statements were recorded on oath under Section  131  of
the Act.  On a query made by the authorities, it is alleged that  they  made
false statements denying of having any locker either in individual names  or
jointly in any bank.  It later transpired that they did have a safe  deposit
locker with the Axis Bank (formerly known as UTI Bank) at  Aurangabad  which
they had  also  operated  on  30.10.2010.   The  search  at  Aurangabad  was
conducted by the Income Tax Officer, Nashik and Income  Tax  Officer,  Dhule
and the statements of the appellants were also recorded at Aurangabad.
4.          Based on the revelation that the appellants, on the date of  the
search, did have one locker as aforementioned and that their  statements  to
the contrary were false and misleading, a  complaint  was  filed  as  afore-
stated under the above-mentioned sections of the Indian Penal  Code  by  the
Deputy Director of Income Tax (Investigation)-I, Bhopal (M.P.) on  30.5.2011
in the court of the Chief Judicial Magistrate, Bhopal, (M.P.) and  the  same
was registered as R.T. No. 5171 of 2011.
5.          The Trial Court on 9.6.2011, took note of the  offences  imputed
and issued process against the appellants.  In doing so,  the  Trial  Court,
amongst  others,  noted  that  the  search  proceedings  undertaken  by  the
authorities under Section  132  of  the  Act  were  deemed  to  be  judicial
proceedings in terms of Section 136 and  in course whereof, as alleged,  the
appellants had made false statements with regard to their  locker  and  that
on the basis of the  documents  and  evidence  produced  on  behalf  of  the
complainant, sufficient grounds had been made out against  them  to  proceed
under Sections 191,193, 200 IPC.
6.          The appellants impugned this order of  the  Trial  Court  before
the High Court under Section  482  Cr.P.C.  (for  short  hereinafter  to  be
referred to as “the Code”) and sought annulment  thereof  primarily  on  the
ground that the search operations having been undertaken by the  I.T.Os.  of
Nashik and Dhule, the complaint could not have been  lodged  by  the  Deputy
Director of Income Tax (Investigation)-I, Bhopal  (M.P.)  who  was  not  the
appellate authority in terms of Section 195(4) of the Code  and  further  no
part of the alleged offence having been  committed  within  the  territorial
limits of the Court of the Chief Judicial  Magistrate,  Bhopal,  it  had  no
jurisdiction to either entertain the complaint or  take  cognizance  of  the
accusations.  By the order impeached herein, the High Court has declined  to
interfere on either of these contentions.
7.          We have heard  Ms.  Sangeeta  Kumar,  learned  counsel  for  the
appellants  and  Mr  Ranjit  Kumar,  learned  Solicitor  General   for   the
respondent.
8.          Profusely referring to Section 195 of the Code as  a  whole,  it
has been urged on behalf of the  appellants  that  the  Deputy  Director  of
Income Tax (Investigation)-I, Bhopal (M.P.), in the facts of  the  case  was
not competent to lodge the complaint, he being not  the  authority  to  whom
appeals would ordinarily lie from the orders  or  actions  of  the  I.T.Os.,
Nashik and Dhule.  As the statements of the appellants were recorded in  the
course of a search under Section  132  of  the  Act  which  was  a  judicial
proceeding and for that matter, the  concerned  I.T.Os.,  Dhule  and  Nashik
were deemed to be civil courts, it has been argued  that  in  observance  of
the mandate of Section 195 (4) of the Code, the complaint  could  be  lodged
either by the authorities conducting the search or by the authority to  whom
ordinarily  an appeal would lie from the  orders/decisions  and  actions  of
the income tax authorities undertaking the search.   It  has  been  asserted
with reference to Sections 246 and 246A of the Act in particular,  that  the
complainant, the Deputy Director of  Income  Tax  (Investigation)-I,  Bhopal
(M.P.) is not the authority/forum to whom appeal lies  from  the  orders  of
the I.T.Os. involved and thus was not a Court  as  contemplated  in  Section
195(1)(b) or the appellate forum under Section 195(4) of the Code.
9.          It has been emphatically maintained on behalf of the  appellants
that  having  regard  to  the  place  of  search,  the  recording  of  their
statements as well as of the location of the locker, no cause of action  for
initiation of the criminal proceedings had arisen  within  the  jurisdiction
of the court of the Chief Judicial Magistrate, Bhopal in terms  of  Sections
177 and 178 of the Code and  thus  the  High  Court  had  grossly  erred  in
deciding contrary thereto.  It has been argued  that the rejection of  their
plea by the High Court on the ground that the Deputy Director of Income  Tax
(Investigation)-I, Bhopal (M.P.) was an officer  superior  in  rank  to  the
I.T.Os. conducting the search  is patently flawed and unsustainable  in  law
and on facts, having  regard  to  the  peremptory  perquisites  of  a  valid
complaint under Section 195 of the Code.
10.         Reliance on the decisions of this Court in Kuldip Singh vs.  The
State of Punjab and Another  1956  SCR  125,  Lalji  Haridas  vs.  State  of
Maharashtra and Another 1964 (6)  SCR  700,  Rajesh  Kumar  and  Others  vs.
Deputy C.I.T. and Others (2007) 2 SCC 181, Y. Abraham Ajith and  Others  vs.
Inspector of Police, Chennai and Another (2004) 8 SCC 100 and Bhura Ram  and
others vs. State of Rajasthan and Another (2008) 11 SCC 103  has  been  made
in buttressal of the above assertions.

11.         In refutation  of  the  arguments  advanced  on  behalf  of  the
appellants, the learned  Solicitor  General  has  assertively  endorsed  the
impugned findings, contending that the  decision  assailed  is  based  on  a
detailed reference to the provisions of the Act enumerated in Chapters  XIII
and XX and a correct  analysis  thereof.   He  has  maintained  that  having
regard to the scheme of these chapters  in  particular  and  the  underlying
legislative intent ascertainable therefrom, the Deputy  Director  of  Income
Tax (Investigation)-I, Bhopal (M.P.) had the competence and jurisdiction  to
lodge the complaint at Bhopal.   This  authority  being  admittedly  and  as
patent from the hierarchy enumerated by the Act, higher  in  rank  than  the
I.T.Os.  who had conducted the  search  and  investigation,   did  have  the
authority to file the  complaint  and  that  thereby  the  prescriptions  of
Sections 195(1)(b) and 195(g) of  the  Code   had  not,  in  any  way,  been
contravened.   This is more so as the powers of  any  income  tax  authority
under the Act and his/her  jurisdiction  to  perform  any  function  is  not
limited or restricted but has been consciously   enlarged to deal  with  any
contingency so as to advance the objectives of the legislation, he urged.
12.         Vis-a-vis the competence of the  court  of  the  Chief  Judicial
Magistrate, Bhopal, the learned  Solicitor  General  insisted  that  as  the
appellants were the residents, both of  Bhopal  and  Aurangabad  and  search
operations were conducted simultaneously at both the places, and further  as
they had been filing their income tax returns at  Bhopal,  the  Trial  Court
before which the complaint had been filed, was competent to take  cognizance
of the offences alleged in  terms of Section 178 (b) and (d)  of  the  Code.
To reinforce the above, the decision  of  the  Constitution  Bench  of  this
Court in  Lalji Haridas (supra)  has been pressed into service.
13.         Before adverting to the competing contentions, it would  be  apt
to note the conclusions of the High Court on these two counts.  In  addition
to the admitted factual aspects narrated hereinabove, the High Court  upheld
the jurisdiction of the Chief Judicial Magistrate,  Bhopal  by  taking  note
also of the fact that the income tax returns relatable  to  the  undisclosed
property  i.e.  the  locker  had  been  filed  at  Bhopal.   The  facts,  to
reiterate, that the appellants were residents of Bhopal and Aurangabad,  and
that the search operations were conducted simultaneously at both the  places
were noted as well.
14.          Qua  the  competence  of  the  Deputy  Director,   Income   Tax
(Investigations)-I Bhopal, the High  Court  held  the  view  that  he  being
admittedly an officer  superior  in  rank  to  the  I.T.Os.  conducting  the
search, the institution of the complaint by him  was  not  vitiated  by  any
lack of authority.  Reference to Section 136  of  the  Act,  whereunder  any
proceeding before an income tax authority would  be  a  judicial  proceeding
and that for that matter, every income tax  authority  is  deemed  to  be  a
civil court was recorded as well.  The High Court did refer to  the  Section
195 of the Code to enter a finding that  the  Deputy  Director,  Income  Tax
(Investigations)-I  Bhopal  being  an  officer  superior  to   the   I.T.Os.
undertaking   the   search   and   to   whom   an    appeal    from    their
orders/decisions/actions ordinarily lay, was a civil court  as  contemplated
thereunder to lodge the complaint.
15.         The competing contentions have received our  due  consideration.
The  rival  submissions  stir  up  two  major  issues  pertaining   to   the
maintainability and adjudication of the complaint lodged  before  the  Chief
Judicial Magistrate, Bhopal, (M.P.)  by  the  Deputy  Director,  Income  Tax
(Investigation)-I, Bhopal, (M.P) in the face of the prescription of  Section
195(1)(b) of the Code, in  particular  read  with  the  other  cognate  sub-
sections thereof as well as the limits of the  territorial  jurisdiction  of
the court before which the prosecution of the appellants has been  initiated
in the context of Section 177 of the Code.
16.         Having regard to the decisive bearing  of  the  adjudication  on
the validity or otherwise of the complaint by the  Deputy  Director,  Income
Tax (Investigation)-I, Bhopal, (M.P).  in the textual  facts,  expedient  it
would be  to dwell  on this aspect at the threshold.
17.         The admitted facts reveal that the  appellants  have  residences
both at Bhopal and Aurangabad and  file  their  returns  of  income  tax  at
Bhopal.  On 28.10.2010, search operations under Section 132 of the Act  were
simultaneously  conducted  at  both  the  places.   In  the  course  of  the
interrogation of the appellants, more  specifically  on  the  aspect  as  to
whether they or any of them either individually  or  jointly  did  hold  any
locker, the answer was in the negative.  The accusation of  the  authorities
is that further investigation revealed that they did hold a  locker  in  the
Axis Bank (formerly known as UTI Bank), Kranti Chowk, Aurangabad  which  had
been operated by appellant No. 1 on 30.10.2010.  In this  factual  backdrop,
the  complaint  had  been  filed  by  the  Deputy   Director,   Income   Tax
(Investigation)-I, Bhopal, (M.P) in the court of Chief Judicial  Magistrate,
Bhopal, (M.P.) asserting that by making such false statement in  the  course
of search operations which were judicial proceedings  in  terms  of  Section
136 of  the  Act,  the  appellants  had  committed  offence  under  Sections
109/191/193/196/200/420/120B/34 IPC.  As referred to hereinabove, the  Chief
Judicial Magistrate, Bhopal, after necessary hearing as contemplated in  law
and being prima facie satisfied that sufficient grounds had  been  made  out
to proceed against the  appellants  under  Sections  191,193  and  200  IPC,
issued process against them.
18.         As the documents appended to the appeal  would divulge that  the
search operations at Aurangabad had been conducted on the  strength  of  the
warrant of authorisation dated 26.10.2010 under  Section  132  of  the  Act,
issued, signed and sealed by the Director  of  Income  Tax  (Inv.),  M.P.  &
C.G.,Bhopal/Deputy  Director  of  Income  Tax  and  the  statements  of  the
appellant Nos. 1 and 2  were recorded by Mrs. Bharati Choudhary, I.T.O.  and
Mr. A.T. Kapase, I.T.O. (Inv.), Nashik  on  28.10.2010.   The  materials  on
record also disclose that  search  operations  did  continue  on  subsequent
dates as well, in course whereof seizures were made.
19.         Be that as it may, eventually the office of the Deputy  Director
of Income Tax (Investigation)-I, Bhopal on  8.2.2011  issued  a  show  cause
notice to the appellants under Section 277 of the  Act  alleging  that  they
had made false statement under Section 132(4)  thereof,  thereby  seeking  a
reply as to why prosecution would not follow by virtue thereof.   It  is  in
this factual premise, that the  validity  of  the  complaint  filed  by  the
Deputy Director, Income Tax  (Investigation)-I,  Bhopal,  (M.P).   has  been
questioned by the appellants.  To reiterate,  by  the  impugned  order,  the
High Court has negated both the demurrals of the  appellants  pertaining  to
the complaint and  territorial  jurisdiction  of  the  court  of  the  Chief
Judicial Magistrate, Bhopal.
20.         The state of law as adumbrated  by  the  precedents  cited   may
now be outlined before referring  to the relevant provisions involved.
21.          In  Kuldip  Singh  (supra),  the  question  involved  before  a
Constitution Bench of this Court was about the validity of a complaint  made
under Section 476-A read  with  Section  195(3)  of  the  Code  of  Criminal
Procedure Code 1898 against the appellant  for   perjury  and  for  using  a
forged document as genuine.  The  contextual  facts  narrate  that  the  2nd
respondent therein had filed a suit against the appellant  for  recovery  of
money on the basis of a mortgage in  the  Court  of  one  Mr.  E.F.  Barlow,
Subordinate Judge of 1st  Class.  The appellant in the suit filed a  receipt
which  purported  to  show  that  Rs.35000/-  had  been  paid  towards   the
satisfaction of the mortgage and in the witness box he  swore  that  he  had
paid the money for which the receipt was given.
22.         Mr. Barlow held that the receipt did not appear to be a  genuine
document and that the evidence of the  appellant  to  that  effect  was  not
true.  A preliminary decree was accordingly  passed  against  the  appellant
for the entire amount  followed by a final decree.    The  appeal  preferred
by the appellant was also dismissed by the High Court which reiterated  that
the receipt  was  a  very  suspicious  document  and  that  the  appellant's
evidence was not reliable as well.
23.         The  plaintiff/respondent  thereafter  made an
 application in the Court of Mr. W. Augustine who had succeeded  Mr.  Barlow
as  Subordinate Judge of  1st  Class  stating  that  a  complaint  be  filed
against the appellant under Sections 193  and  471  I.P.C.   Mr.  Augustine,
because of his transfer could not hear the application  for  filing  of  the
complaint.  In his place Mr. K.K. Gujral,   subordinate  Judge  of  the  4th
Class was sent.  He, however,  declined to entertain the matter  as  he  was
only a subordinate judge of the 4th Class and laid a report to the  District
Judge pointing out his lack of jurisdiction in the matter  as  the  offences
had been allegedly committed in the Court of a subordinate Judge of the  1st
Class.  The District Judge thereupon transferred the matter  to  the  Senior
Subordinate Judge, Mr. Pitam Singh who made the complaint.  The  impeachment
of the validity of the complaint has arisen in this backdrop.
24.         As the sequence of events unfold, the appellant filed an  appeal
against the order of Mr. Pitam Singh to the Additional  District  Judge  Mr,
J.N. Kapur who held that the Senior Subordinate Judge  Mr. Pitam  Singh  had
no jurisdiction to make complaint.  He also held  that  on  merits  as  well
there was no prima facie case.  The High Court, however,  in  revision  held
that the Senior Subordinate Judge  had  the  jurisdiction  and  further  the
materials on record did disclose  a  prima  facie  case.   Accordingly,  the
order of the Additional District Judge was set aside and the  order  of  the
Senior Subordinate Judge was restored.
25.         Three questions fell before this Court  for  scrutiny.  Firstly,
whether the Senior Subordinate Judge Mr. Pitam  Singh  had  jurisdiction  to
entertain the application and  make  a  complaint.   Secondly,  whether  the
Additional District Judge had jurisdiction to entertain an appeal  preferred
against the order of Mr. Pitam Singh and thirdly,  whether  the  High  Court
had the power to reverse the order  of  the  Additional  District  Judge  in
revision.
26.         While dwelling upon the first issue, this Court adverted at  the
threshold to Section 195(1)(b) and (c) of the  Code  which   prohibited  any
Court from taking cognizance of either of the two offences alleged,   except
on the complaint in writing of the Court concerned or of  some  other  Court
to which such Court was subordinate.  Having regard to  the  fact  that  the
offences were committed in the Court of E.F. Barlow,  Subordinate  Judge  of
the 1st Class, their Lordships next referred to Section 476-A  of  the  Code
which prescribed that when the Court in which the offence is  said  to  have
been committed neither makes a complaint nor rejects an application for  the
making of a complaint, the Court to which such former Court  is  subordinate
within the meaning of Section 195 (3) may take action under Section 476.
27.          Their  Lordships  noted  that  Section   476   authorised   the
appropriate Court, after recording a finding  to  the  effect  that  it  was
expedient to do so in the  interest  of  justice  to  make  a  complaint  in
writing and forward it to a Magistrate of  1st  Class  having  jurisdiction.
While examining in the scheme of prevalent hierarchy of posts as to  whether
the court of Senior Subordinate Judge presided over by Mr. Pitam  Singh  was
a Court to which the Court of Mr. Barlow was subordinate within the  meaning
of Section 195(3) of the Code, their  Lordships  marked  that  in  terms  of
Section 195(3), a Court for the purposes thereof,  would  be  deemed  to  be
subordinate  to  the  Court  to  which  appeals  ordinarily  lay  from   the
appealable decrees or sentences of such former Court, or in the  case  of  a
Civil Court from whose decrees no appeal ordinarily lay,  to  the  principal
court having ordinary original civil jurisdiction within  the  local  limits
of whose jurisdiction  such  Civil  Court  was  situated.   The  proviso  to
Section 195(3) was also noted which ordained that where appeals lie to  more
than one court, the appellate court of the inferior  jurisdiction  would  be
the court to which such court would be deemed to  be  subordinate.   Further
when appeals lay to a Civil and also to a Revenue Court, such  Courts  would
be deemed to be subordinate to the Civil or Revenue Court, according to  the
nature of the case or the proceedings in connection with which  the  offence
was alleged to have been committed.
28.         In this conspectus, this Court laid a decisive emphasis  on  the
word “ordinarily” and to disinter the legislative  intent,  alluded  to  the
relevant provisions of the Punjab Courts Act,  1918  dealing  in  particular
with the classes and hierarchy of Civil Courts.  Apart from  the  Courts  of
Small Causes,  it was noticed  that  under  the  said  Act  following  three
classes of Civil Courts were provided:
(i)  The Court of District Judge
(ii)  The Court of Additional Judge
(iii) The Court of the Subordinate Judge
29.         Vis-a-vis the provisions for appeal  under  Section  39  of  the
Act,  it was noted that in the absence of any other enactment for  the  time
being in force,  appeals lay to the Court of the  District  Judge  when  the
value of the suit did not exceed Rs.5,000/- and in every other case  to  the
High  Court.   Section  39(3),  however,  empowered  the   High   Court   by
notification to direct that appeals lying to the District Court from all  or
any of the decrees or orders  passed  in  its  original  jurisdiction  by  a
Subordinate Judge, would be preferred to such  other  Subordinate  Judge  as
mentioned in such notification.  The facts revealed that   as  a  matter  of
fact such power had been invoked and appeals lying to  the  District  Courts
from the decrees or orders passed by a Subordinate Judge in two  classes  of
cases as specified could be preferred before the  Senior  Subordinate  Judge
of the 1st Class exercising jurisdiction within such Civil District.
30.         In this factual setting their Lordships  expounded  that  filing
of the appeal to the Senior  Subordinate  Judge  as  notified  qua  the  two
selected categories of cases, could not be termed as “ordinary” because  the
special appellate jurisdiction had been conferred by  the  notification,  by
way of an additional  assignment  so  much  so  that  the  power  pertaining
thereto could be exercised in a certain limited  categories  of  cases.   It
was not an ordinary appellate jurisdiction of the Senior  Subordinate  Judge
and for that matter for all Senior Subordinate Judges  generally,  it  could
not be said that appeals from the Courts of  Subordinate  Judges  ordinarily
lay to that of a  Senior Subordinate Judge.
31.         Their Lordships thus concluded  that  in  the  paradigm  of  the
Civil  Courts  as  codified  by  the  Punjab  Court's  Act,  1918,   appeals
ordinarily lay either to the District Court or to the High Court and as  the
District Court was of the lower tier of these  two  forums,  it  was  to  be
regarded as the appellate authority for the purposes of  Section  476  B  of
the Code.  With reference to Proviso (b) to Section 195(3) of the  Code,  it
was held that where in the facts of the case, appeals would lie to  a  Civil
as well as Revenue Court,  the  nature  of  the  case  or  proceeding  would
determine the court to which appeal would  lie  and  that  to  that  limited
extent the nature of the proceeding ought to  be  taken  into  account,  but
once the genus  of the proceeding is determined namely,  Civil, Criminal  or
Revenue, the hierarchy of the superior Courts would be determined  first  by
the rules that apply in their special cases, if any and next by the rule  in
Section 195(3).
32.         While dealing with the aspect as to whether  the  Court  of  the
senior  Subordinate Judge was the Court to which the  Court  of  Subordinate
Judge of the 1st Class was Subordinate or  both  the  courts  were  at  par,
their Lordships confined the adjudication to the provisions  of  the  Punjab
Court's Act, Section (18) whereof did authorise the State Government to  fix
the number of subordinate judges to be appointed.  Section 27  which  vested
the power in the High Court to post a subordinate judge and  also  prescribe
  the   limits  of   his/her  jurisdiction  was  also  referred  to.   Their
Lordships noted in terms of the  Notification  dated  03.01.1923  that  four
classes of
Subordinate  Judges  had  been   contemplated   based   on   the   pecuniary
jurisdiction conferred.
33.         In the above factual as  well  as  legal  premise  it  was  thus
propounded  that  the  Senior  Subordinate  Judge   Pitam   Singh   had   no
jurisdiction to lodge the complaint and instead it was  the  District  Judge
who was competent to do so,  being the Court  to  which  appeals  ordinarily
lay from the court of the subordinate judge and was  lower in  rank  to  the
High Court in the hierarchy.  It was held in this context,  that  the  Court
of the Additional District Judge could not be construed  to  be  a  District
Judge and that the jurisdiction of the former was limited to  the  discharge
of such functions as were to be entrusted by the  District  Judge.   It  was
thus concluded that neither the Senior Subordinate  Judge  Mr.  Pitam  Singh
nor the Additional  Judge  Mr.  J.N.  Kapur  who  construed  himself  as  an
Additional District Judge, had the jurisdiction in the matter  and  in  view
of the provisions of the Punjab Courts Act, it was the  District  Judge  who
was competent to lodge the complaint in  terms  of  Section  195(3)  of  the
Code.  Having regard to the gravity of the allegations, this Court  remitted
the matter to the District Court to do the needful in the  exercise  of  his
discretion in the facts and circumstances of the case.
34.         In Lalji Haridas (supra), a Constitution  Bench  of  this  Court
was seized with the question as to whether the proceeding before the  I.T.O.
under Section 37 of the Indian  Income  Tax  Act,  1922  (as  it  was  then)
could be construed to be a proceeding in any court  within  the  meaning  of
Section 195(1)(b) of the Code.  The factual backdrop as  outlined  discloses
that the appellant and the respondent No. 2  therein  were  businessmen  and
used to carry on their business at two different places and  were  known  to
each other for several years. In the income tax  assessment  proceedings  of
the appellant for the assessment years 1949-50 and 1950-51,  the  respondent
No. 2 adduced evidence on oath before the  I.T.O.  of  the  concerned  ward,
wherein he denied that he had a son named Nihal Chand and that he  had  done
any business in the name of M/s.  Nihal  Chand  &  Co.  at  Jamnagar.    The
appellant alleged that the said statement was false to the knowledge of  the
respondent No. 2 and was made to  mislead  the  enquiring   I.T.O.   and  to
avoid the incidence of income tax on himself and consequently the  appellant
was heavily taxed.
35.         The appellant thereafter  filed  a  criminal  complaint  against
respondent No. 2 under Section 193 IPC.  At the hearing  of  the  complaint,
the respondent No.  2  raised  a  preliminary  objection  that  the  learned
Magistrate before whom the complaint had been filed, could  not  have  taken
cognizance  thereof as the allegation was making of  a  false  statement  by
him on oath in a proceeding before the court within the meaning  of  Section
195(1)(b) of the Code  and in such an eventuality, the complaint was  to  be
filed by the court concerned as required under the  said  provision  of  the
Code and thus  the appellant was not competent to lodge the prosecution.
36.         Though the learned Magistrate held that the  I.T.O.  was  not  a
court within the meaning of Section 195(1)(b) of the Code, the  High  Court,
on a revision being filed by the respondent No. 2, sustained  his  challenge
to the maintainability of the complaint.   The  High  Court  held  that  the
I.T.O. was a court within the meaning of Section 195(1)(b) of the  Code  and
resultantly dismissed the complaint filed by the appellant,  who  eventually
approached this Court.

37.         Adverting to Section 37 of the Income Tax  Act,  1922  and  sub-
section (4) thereof in particular, it was held that as  apparent  therefrom,
any proceeding before the I.T.O. in which  powers  under  sub-sections  (1),
(2) and (3) are exercised by him,  would  be  judicial  proceeding  for  the
purposes of the three sections of the Indian Penal  Code  as  enumerated  in
sub-section (4).   Consequently,  the  question  as  to  whether  the  false
statement alleged to have been made by the respondent No. 2 was rendered  in
a judicial proceeding within the meaning of Section 193 IPC was answered  in
the affirmative.
38.          This  Court  also  dwelt  upon  the  aspect  whether  “judicial
proceeding” as referred to in  Section  193  IPC  was  synonymous  with  the
expression “any proceeding in any court” used in Section  195(1)(b)  of  the
Code.  This  issue  surfaced  primarily  in  view  of  the  two  classes  of
proceedings  contemplated  in  Section  193  IPC  attracting   two   varying
punishments.  This provision, it was noted, envisaged a  punishable  offence
for giving  false  evidence  in  any  stage  of  a  judicial  proceeding  or
fabricating false evidence for the purpose of being used in any stage  of  a
‘judicial proceeding’ and also for giving or fabricating  false evidence  in
‘any other’ case.  This Court in  the  ultimate  analysis  propounded  on  a
conjoint reading of Section 193 IPC and Section 195(1)(b) of the  Code  that
the proceedings which are judicial under the former ought to be taken to  be
 proceedings in any court under the latter.  In this context, it  was  ruled
that having regard to the higher sentence for the offence under Section  193
IPC qua a judicial proceeding compared to ‘any other case;  the  legislature
thus had intended  that  there  ought  to  be  a  safeguard  in  respect  of
complaints pertaining to the offence relatable to  judicial  proceedings  as
engrafted in Section 195(1)(b)  of  the  Code.   It  was  observed  that  an
offence which was treated as more serious by the first paragraph of  Section
193 IPC, being one committed during the course  of  a  judicial  proceeding,
should be held to be an offence committed in a proceeding in any  court  for
the propose of Section 195(1)(b) of the Code.   In  terms  of  the  majority
decision that was rendered, the view taken by the High Court  was  sustained
and the complaint was dismissed as not filed in compliance of the  statutory
prescriptions contained in Section 195(1)(b) of the Code.
39.         Noticeably in course of the adjudication,  it  was  marked  that
Section 195 was an exception to an ordinary rule that any person could  make
a complaint in respect of commission of an offence triable under  the  Code.
The restrictive mandate of this provision of the Code against cognizance  of
any offence punishable under the  sections  mentioned  therein,  when  those
pertain to any proceedings in any court, except on the compliant in  writing
of such court or of some other court to which  such  court  is  subordinate,
was underlined in particular.  This Court,  thus  emphasised   that  in  the
matter  of  invocation  of  Section  195(1)(b)  of  the  Code,  vis-a-vis  a
complaint about any of the offences as mentioned therein,  an  exception  to
the ordinary rule of making complaint by any person has been carved out  and
by way of a safeguard, only the court in the proceeding  before  which  such
offence had been  committed  or   such  officer  of  the  Court  as  it  may
authorise in writing  or  some  other  court  to  which  to  this  Court  is
subordinate, has been legislatively  identified as competent to do so.
40.         The decision in Rajesh Kumar (supra)  pertains to  the  decision
of the authorities under the Act to conduct a special audit of  the  account
of the petitioner - assessee in terms of Section 142(2-A) of the  Act.  This
was subsequent to a raid conducted  in  the  premises  of  the  assessee  in
course whereof some documents including  its  books  of  accounts  had  been
seized. The assessee questioned this decision of appointment  of  a  special
auditor principally on the ground of  want  of  fairness  in  action  as  no
opportunity of hearing was given to it, prior thereto.   The  interpretation
and application of Section 142(2-A) of the Act in  the  textual  facts  thus
fell for consideration in this case.  It  is  in  this  context   that  this
Court  ruled that an assessment proceeding under the Act,  is  in  terms  of
Section 136 thereof, a judicial proceeding  and that when a statutory  power
is exercised by the assessing authority in  exercise  of  judicial  function
which is detrimental to  the  assessee,  the  same  is  not  and  cannot  be
administrative  in  nature.  In  the  extant  facts  and  circumstances  the
challenge of the assessee was upheld.
 41.        As the genesis of the debate is rooted to  Section  195  of  the
Code, a detailed reference  thereto  is  indispensable.   For   convenience,
Section 195 as a whole is extracted hereinbelow:
“195. Prosecution for contempt of lawful authority of public  servants,  for
offences against public justice  and  for  offences  relating  to  documents
given in evidence.

(1)   No Court shall take cognizance-

(a)  (i) of any offence punishable  under      sections  172  to  188  (both
inclusive)  of  the Indian Penal Code (45 of      1860), or

    (ii) of any abetment of, or attempt to   commit, such offence, or

  (iii) of any criminal conspiracy to  commit such offence,  except  on  the
complaint in writing of the public     servant concerned or  of  some  other
public servant to whom he is      administratively subordinate;

(b)  (i) of any offence punishable under     any of the  following  sections
of the      Indian Penal Code (45 of 1860),  namely,  sections  193  to  196
(both       inclusive), 199, 200, 205 to 211 (both      inclusive) and  228,
when such   offence is alleged to have been  committed in,  or  in  relation
to, any     proceeding in any Court, or

(ii) of any offence  described  in  section      463,  or  punishable  under
section     471, section 475 or section 476, of   the said Code,  when  such
offence is  alleged to have been committed  in      respect  of  a  document
produced or      given in evidence in a proceeding in   any Court, or

(iii) of any criminal conspiracy to commit,  or attempt to  commit,  or  the
abetment of, any offence specified in  sub- clause (i) or sub- clause  (ii),

      [except on the complaint in writing of       that  Court  or  by  such
officer of the   Court as that Court may  authorise  in    writing  in  this
behalf, or of some     other Court to which that Court is    subordinate].

(2) Where a complaint has been made by a public servant under clause (a)  of
sub- section (1) any authority to which he is  administratively  subordinate
may order the withdrawal of the complaint and send a copy of such  order  to
the Court; and upon its receipt by the Court, no further  proceedings  shall
be taken on the  complaint:  Provided  that  no  such  withdrawal  shall  be
ordered if the trial in the Court of first instance has been concluded.

(3) In clause (b) of sub- section (1),  the  term"  Court"  means  a  Civil,
Revenue or Criminal Court, and includes a tribunal constituted by  or  under
a Central, Provincial or State Act if declared by that Act  to  be  a  Court
for the purposes of this section.

(4) For the purposes of clause (b) of sub- section (1),  a  Court  shall  be
deemed to be subordinate to the Court to which appeals ordinarily  lie  from
the appealable decrees or sentences of such former Court, or in the case  of
a Civil  Court  from  whose  decrees  no  appeal  ordinarily  lies,  to  the
principal Court having ordinary original  civil  jurisdiction  within  whose
local jurisdiction such Civil Court in situate:

 Provided that-

(a) where appeals lie to more than one       Court, the Appellate  Court  of
inferior    jurisdiction shall be the Court to which    such Court shall  be
deemed to be     subordinate;

(b) where appeals lie to a Civil and also to a    Revenue Court, such  Court
shall be    deemed to be  subordinate  to  the  Civil  or     Revenue  Court
according to  the  nature      of  the  case  or  proceeding  in  connection
with which the offence is alleged to have    been
committed.”

Section 195(1)(b) of the Code, which is relevant for  the  instant  pursuit,
prohibits  taking of cognizance by a court vis-a-vis the offences  mentioned
in the three clauses (i), (ii) and (iii)  except on a complaint  in  writing
of the Court  when the offence(s)  is/are alleged to have been committed  in
or in relation to  any proceeding before it  or in  respect  of  a  document
produced or given in evidence in such a proceeding or  by  such  officer  of
that court as it may authorise in writing or by some other  court  to  which
the  court  (in  the  proceedings  before  which  the  offence(s)  has  been
committed) is subordinate. A patently regulatory imposition  in  the  matter
of lodging of a complaint for such  offences  is  discernible  assuredly  to
obviate frivolous and wanton complaints by all and sundry.
42.         Sub-section (3) of Section 195 clarifies  that the term  “Court”
would mean a Civil, Revenue or Criminal court and would  include a  tribunal
constituted by or under a Central, Provincial  or State  Act,   if  declared
by that Act to be a Court for the purposes of this section.
43.         In terms of sub-section (4), for  the  purposes  of  sub-section
(1)(b),  a Court shall be deemed to be subordinate to  the  Court  to  which
appeals ordinarily lie from  the appealable decrees  or  sentences  of  such
former Court, or in the case of a Civil Court from whose decrees  no  appeal
ordinarily lies, to the  principal  Court  having  ordinary  original  civil
jurisdiction within whose local jurisdiction, such Civil Court is situated.
44.         The proviso to sub-section (4) explains that where  appeals  lie
to more than one Court, the Appellate Court  of  the  inferior  jurisdiction
shall be the Court to which such Court (in the proceedings before which  the
offence has been committed) shall be deemed  to  be  subordinate  and  where
appeals lie to a Civil and also to a Revenue Court, the subordination  would
be determined by the nature of the case or  the  proceeding,  in  connection
with which the offence is alleged to have been committed.
45.         Noticeably Section 195 of the Code  appears  under  Chapter  XIV
enumerating  the  conditions  requisite  for   initiation   of   proceedings
thereunder.  Though Section 190 of  the  Code  outlines  the  categories  of
inputs on which a Magistrate of the first class, and any Magistrate  of  the
second class  specially  empowered,  can  take  cognizance  of  the  offence
alleged, Section 195 dealing with the prosecution  for  contempt  of  lawful
authority of public servant and  for  offences  against  public  justice  or
relating to documents given in  evidence,  unmistakably  marks  a  departure
from the usual modes of taking cognizance under Section 190  by  prescribing
the restrictions as adverted to hereinabove.
46.         That the provisions of Section 195 of the Code are mandatory  so
much so that non-compliance thereof would vitiate the  prosecution  and  all
consequential orders, has been ruled by this Court,  amongst  others  in  C.
Muniappan and Others vs. State of Tamil Nadu (2010) 9 SCC 567   wherein  the
following observations in Sachida Nand Singh and Another vs. State of  Bihar
and Another (1998) 2 SCC 493 were recorded with approval.
“7.....Section 190 of the Code empowers 'any Magistrate of the First  Class'
to take cognizance of 'any offence' upon receiving a  complaint,  or  police
report or information or upon his  own  knowledge.   Section  195  restricts
such general powers of the Magistrate, and the general right of a person  to
move the court with a complaint is to that extent curtained.  It is a  well-
recognised canon  of  interpretation  that  provision  curbing  the  general
jurisdiction of  the  court  must  normally  receive  strict  interpretation
unless the  statute  or  the  context  requires  otherwise.....”.  (emphasis
supplied).

47.         There is thus no escape from the proposition that  for  a  valid
complaint under Section 195 of the Code,  the  mandate  thereof  has  to  be
essentially  abided  and  as  is  easily  perceivable  this  is  to  prevent
frivolous, speculative and unscrupulous  allegations  relating  to  judicial
proceedings in any court, lest the process of law is abused and public  time
is wasted in avoidable litigation.
48.         That the search operations did  constitute  a  proceeding  under
the Act before an income tax  authority  and  that  therefore  the  same  is
deemed to be  a  judicial  proceeding  within  the  meaning  inter  alia  of
Sections 193 and 196  IPC and that every income tax authority for  the  said
purpose would be deemed to be a civil court for the purposes of Section  195
is not an issue between the parties.
49.         The essence of the discord  is  the  competence  of  the  Deputy
Director,  Income  Tax  (Investigation)-I,  Bhopal  (M.P.)   to  lodge   the
complaint. Whereas, according to the appellants, he is not the authority  or
the  forum  before   which   appeals   would   ordinarily   lie   from   the
actions/decisions of the I.T.Os.  who  had  recorded  their  statements,  as
mandated by Section 194(4) of the  Code,  it  is  urged  on  behalf  of  the
respondent that having regard to the overall scheme of the  Act,  he  indeed
was possessed of the appellate jurisdiction to maintain the  complaint.   As
nothing much turns  on  the  ingredients  of  the  offences  under  Sections
193,196,200 IPC  qua the issue to be addressed, detailed  reference  thereto
is considered inessential. The relevant provisions of the  Act  next  demand
attention.
50.         As enumerated under Section 116 of  Chapter  XIII  of  the  Act,
Deputy Director of  Income  tax/Deputy  Commissioner  of  Income  Tax/Deputy
Commissioner of Income Tax (Appeals)  amongst  others   are  the  designated
income tax authorities.  Section 118 authorises the Central Board of  Direct
Taxes constituted under the Central Board of Revenue Act, 1963  (hereinafter
referred to as “the Board”)  to  direct  by  notification  in  the  official
gazette that any income  tax  authority  or  authorities  specified  therein
would be subordinate to such other income tax authority  or  authorities  as
may be specified in such notification.  In  course of the arguments, such  a
notification as contemplated has been laid before this Court  and  attention
has been drawn to clause (e) thereof in the following terms:
“Income-tax Officers shall be subordinate  to  the  Assistant  Directors  or
Assistant  Commissioners  within  whose  jurisdiction  they  perform   their
functions or other income-tax authority under whom  they  are  appointed  to
work and to any other income tax authority to whom  the  Assistant  Director
or the Assistant Commissioner, as the case  may  be,  or  other  income  tax
authority is subordinate.”

51.          As  would  be  evident  from  the  above  extract,   it   deals
exclusively with the inter se subordination  of  the  authorities  mentioned
therein so much so that Income Tax Officers have been  made  subordinate  to
Assistant Directors or Assistant  Commissioners  within  whose  jurisdiction
they perform their functions or other  income  tax  authorities  under  whom
they are appointed to work and to any other income  tax  authority  to  whom
the Assistant Director or the Assistant Commissioner as the case may  be  or
other income tax authority is subordinate.  Noticeably this clause does  not
spell  out   any   territorial   barriers   but   logically   warrant   some
order/notification to activate the functional mechanism in order to  address
the institutional exigencies.
52.         Our attention has  not  been  drawn  to  any  document  to  this
effect.   Additionally as well, the decisive  and  peremptory   prescription
of Section 195(4) of the Code is not merely the levels of the rank inter  se
but the  recognised  appellate  jurisdiction  ordinarily  exercised  by  the
authority or the forum concerned for a complaint to  be  validly  lodged  by
it, if in a given fact situation, the initiation of  prosecution  is  sought
to be occasioned not by the  court  in  the  proceedings  before  which  the
contemplated offence(s) had been   committed,  but   by  a  court  to  which
ordinarily appeals therefrom would lie.
53.         Considerable emphasis has been laid on behalf of the  respondent
on the provisions of the Act outlining  the jurisdiction of the  income  tax
authorities  as  encompassed  in  Sections  120  and  124  of  the  Act   in
particular.   Section  120  provides  that  income  tax  authorities   would
exercise all or any of the powers and perform all or any  of  the  functions
conferred on or as the case may be assigned to such  authorities  under  the
Act in accordance with such directions  as  the  Board  may  issue  in  this
regard. The factors to be taken note of by the Board  or  any  other  income
tax authority authorised by it for such purposes have also been  prescribed.
 As a necessary corollary, the Board can also by general  or  special  order
and subject to such  conditions,  restrictions  or  limitations  as  may  be
specified therein, authorise such authorities as enumerated  in  sub-section
(4) thereof to perform such functions, as may be assigned.
54.         The powers of an assessing officer vested with the  jurisdiction
as permitted by Section 120 of the Act, extends as is clarified  by  Section
124, to any person carrying on business  or  profession,  if  the  place  at
which he carries on his business  or  profession   is  situated  within  the
limits of the area  over  which  such  officer  had  been  vested  with  the
jurisdiction or if the person concerned carries on business in  more  places
than one, if the principal place of his business or profession  is  situated
within the area over which  the assessing  officer   has  jurisdiction.   In
addition, such officer would have also jurisdiction in respect of any  other
person residing within the area.  Sub-section 3  of  Section  124  debars  a
person to call in question the jurisdiction of an assessing officer  in  the
eventualities as mentioned in sub-clauses (a) and (b) thereof.
55.         The power with regard to discovery, production of evidence  etc.
and the officer empowered to exercise  the  same  has  been  dealt  with  in
details in Section 131 of the Act. The procedure  to  be  complied  with  in
conducting search and seizure has been delineated  in  Section  132  of  the
Act.  Seemingly, to this extent, the parties are one and ad idem.
56.         The bone of contention lies in  the  interpretation  of  Section
246 of the Act in particular which is contained in Chapter XX  dealing  with
Appeals and Revision. Whereas  Section  246  catalogues  the  orders  of  an
assessing officer other than those of the  Deputy  Commissioner  from  which
appeal would lie to the Deputy Commissioner (Appeals),  Section  246A  lists
the orders from which  appeal  would  lie  to  the  Commissioner  (Appeals).
Admittedly, the categories of orders specified under Section 246(1)  of  the
Act do not include one stemming from  any  proceeding  before  an  assessing
officer under Section 132 of  the  Act  pertaining  to  search  or  seizure.
Noticeably though under Section 116 of the Act, as referred to  hereinabove,
under  clause  (d)  thereof,  Deputy  Director   of   Income   Tax,   Deputy
Commissioner of Income Tax and Deputy Commissioner of Income  Tax  (Appeals)
have been bracketed together, it is only the Deputy Commissioner  (Appeals),
as is apparent  from  Section  246(1),  who  has  been  conferred  with  the
appellate jurisdiction to entertain appeals, albeit from   specified  orders
passed by an  assessing   officer   as   mentioned   in   that  sub-section.
The Deputy Director of Income Tax in particular, has not been designated  to
be the appellate authority or forum from such orders or any other  order  of
the assessing officer.  Having regard to the issue to be  addressed,  it  is
considered inessential to dilate  on  Section  246A  which  deals  with  the
appeals to the  Commissioner (Appeals).
57.         Our attention has not been drawn to any  provision  of  the  Act
whereunder the Deputy Director of  Income Tax has been designated  to be  an
authority or forum before whom  an appeal would lie from any  order  of  any
subordinate officer  including  the   I.T.O..   To  reiterate,  I.T.Os.  are
included in the classes of income tax authorities as per Section 116 of  the
Act  and having regard to the hierarchy designed, they  are  subordinate  in
rank to the Deputy Director of Income Tax,  Deputy  Commissioner  of  Income
Tax and the Deputy Commissioner of Income Tax (Appeals).
58.         On a conjoint reading of the above provisions of the Act, it  is
thus patent that  the  statute  has  not  only  identified  the  income  tax
authorities  but  also  has  specified  their   duties   and   jurisdiction,
territorial and otherwise.  It has stipulated as well the eventualities  and
the pre-requisites, for the exercise of such jurisdiction or performance  of
the duties assigned to ensure effective  and  purposeful  implementation  of
the provisions thereof.   These functional framework  indubitably  has  been
made for the desired conduct of the organisational affairs as  legislatively
intended.
59.         The word “ordinary” as defined in Blacks  Law  Dictionary,  10th
Edition, reads thus:
“Ordinary: occurring in regular course of events; normal; usual.
The word “ordinarily” is a derivative of this  word  (adverb)  carrying  the
same meaning.
60.         The  word  “ordinarily”  therefore  would  denote   developments
which are likely to occur,  exist  or  ensue    in  the  regular  or  normal
course of events as logically and rationally  anticipated  even  though  not
set out or expressed in categorical terms. This is a compendious  expression
 to encompass  all  events   reasonably expected to occur  in the usual  and
common  course  of  occurrences   and  are  expected  to  so  happen  unless
prohibited,  prevented  or  directed   by  some   express   and   unexpected
interventions to the contrary.
61.         As adverted to hereinabove, Section 195 of the Code  read  as  a
whole unambiguously impose  restrictions  in  the  matter  of  lodgement  of
complaint qua the offences as mentioned  in sub-section  (1)(b)  thereof  in
particular  and  therefore   as  a   corollary,   any   interpretation   for
identifying the court/authority/forum contemplated thereby to  be  competent
has to be in furtherance  of the   restraint  and not in  casual  relaxation
thereof. Consequently, therefore the   exposition of the provisions  of  the
corresponding substantive law which  designs  the  forums  or    authorities
and confers  original and  appellant jurisdiction has also to be in  aid  of
the underlying objectives of the restrictions  stipulated.  Any  postulation
incompatible with the  restrictive  connotations  would  be  of   mutilative
bearing thereon and thus frustrate the purpose thereof, a  consequence   not
approvable in law.  To reiterate, Section 195 of the  Code   clearly  carves
out an exception to the otherwise conferred jurisdiction on  a  court  under
Section  190  to  take  cognizance  of  an  offence  on  the  basis  of  the
complaints/information from the sources as enumerated therein.
62.         Viewed in  this  context,  in  our  estimate,  the  notification
issued under Section 118 of the  Act  cannot  be  conceded    an  overriding
effect over the scheme of the  statute   designating  the  appellate  forums
more particularly in absence of  any order, circular,  notification  of  any
authority thereunder to that effect.    The Deputy Director  of  Income  Tax
for that matter,  as the framework of the Act would  reveal,  has  not  been
acknowledged to be the appellate forum  from any order or  the  decision  of
the assessing officer/I.T.O., notwithstanding several other provisions  with
regard to conferment of various powers and  assignments  of  duties  on  the
said office.  In the teeth of such mindful  and unequivocal  module  of  the
Act, recognition of the Deputy Director of Income Tax to be a forum to  whom
 an appeal would  ordinarily  lie  from  any  decision  or  action   of  the
assessing officer/income tax officer  would  not  only  be  inferential  but
would  also  amount  to  unwarranted  judicial  legislation   by   extrinsic
additions  and doing violence  to the language of the law framed.    On  the
contrary, acceptance of the Deputy Commissioner (Appeals) as  the  forum  to
which  an  appeal  would  ordinarily  lie  from  an  order/decision  of  the
assessing officer/I.T.O., would neither be inconsistent with  nor  repugnant
to any other provision of the Act and certainly not incompatible   with  the
legislative scheme thereof.  Mere silence in Section 246 of  the  Act  about
any decision or  order  other  than  those  enumerated  in  sub-section  (1)
thereof as appealable /decision to the Deputy Commissioner  (Appeals),  does
not ipso fact spell legislative  prohibition  in  that  regard  and  in  our
comprehension instead signifies an affirmative dispensation.
63.         It is a trite law that there is  no  presumption  that  a  casus
omissus exists and a court should  avoid  creating  a  casus  omissus  where
there is none.  It is a fundamental  rule  of  interpretation   that  courts
would not feel the gaps in statute, their functions being   jus  discre  non
facere i.e. to declare or decide the law.   In  reiteration  of  this  well-
settled exposition, this Court in (2008) 306 ITR 277  (SC)  Union  of  India
and others vs. Dharmendar  Textile Processors  and others   had ruled   that
it is a well settled principle in law that a court cannot read  anything  in
the statutory provision or  a  stipulated  provision  which   is  plain  and
unambiguous.   It  was  held   that  a  statute  being  in  edict   of   the
Legislature,  the  language  employed  therein  is  determinative   of   the
legislative intent.  It recorded with approval the observation in  Stock  v.
Frank Johns (Tipton) Limited (1978) 1 All ER 948 (HL)  that it  is  contrary
to all rules of construction  to  read  words  into  an  Act  unless  it  is
absolutely necessary to do  so.  The  observation  therein  that,  rules  of
interpretation do not permit the courts to do so unless the provision as  it
stands meaningless or doubtful and that the courts are not entitled to  read
words into an Act of Parliament unless clear reason for it is  to  be  found
within the four corners of the statute, was underlined.  It  was  proclaimed
that   a casus omissus  cannot be supplied by the court except in  the  case
of clear necessity and that reason for is found in the four corners  of  the
statute itself but at the same time a casus omissus  should not  be  readily
inferred and for that purpose, all the parts of a statute  or  section  must
be construed together and every clause of  a  section  should  be  construed
with reference to  the  context  and  other  clauses  thereof  so  that  the
construction to  be  put  on  a  particular  provision  makes  a  consistent
enactment of the whole statute.
64.         More recently  this  Court   amongst  others  in  Petroleum  and
Natural Gas Regulatory Board vs. Indraprastha Gas Limited and Others  (2015)
9  SCC  209  had  propounded   that   when  the  legislative  intention   is
absolutely  clear  and  simple  and  any  omission  inter  alia   either  in
conferment of power or in the ambit or expanse of  any  expression  used  is
deliberate and not accidental, filling up  of the lacuna as  perceived    by
a judicial interpretative process is impermissible. This was in  reiteration
of the  proposition   in  Sree  Balaji  Nagar  Residential  Association  vs.
State of Tamil Nadu and Others (2015) 3 SCC 353 to the  effect   that  casus
omissus  cannot be supplied by the  court  in  situations  where   omissions
otherwise noticed  in a statute or  in  a  provision  thereof   had  been  a
conscious legislative intendment.
65.         The judicial formulations on the theme  is  so  consistent   and
absolute in terms that no further dilation  is  essential.   The  scheme  of
the Act and  the legislative  design  being   unreservedly   patent  in  the
instant case, that it is plainly impermissible  to  acknowledge  the  Deputy
Director of Income Tax  to be the forum to which an appeal would  ordinarily
lie from an order/decision of an assessing officer/I.T.O.  The  present   is
thus not a case where this Court can premise that  the statute suffers  from
casus omissus  so as to  recognise the Deputy Director  of  Income  Tax   as
such an appellate forum.
66.          In  this  persuasive  backdrop,  the  conferment  of  appellate
jurisdiction   on   the   Deputy   Commissioner   of   Appeals   from    the
orders/decisions of the assessing officers as is apparent from  Section  246
of the Act, has to be construed as a conscious statutory mandate.   This  is
more so as noticed hereinabove, the Deputy Director of  Income  Tax,  Deputy
Commissioner of Income  Tax  and  the  Deputy  Commissioner  of  Income  Tax
(Appeals) have been otherwise placed at  par  in  the  list  of  income  tax
authorities provided by Section 116 of the  Act.   The  omission  to  either
vest the Deputy Director of Income Tax  with  the  appellate  powers  or  to
contemplate  the  said  post   to   be   an   appellate   forum   from   the
orders/decisions of the assessing officers cannot  thus  be  accidental   or
unintended.  The relevant provisions of the Act pertaining  to  the  powers,
duties and jurisdiction of the various income tax authorities do  not  leave
any room for doubt, in our estimate, to conclude  otherwise.   True  it  is,
that the Deputy Commissioner of Appeals  has  been  construed  in  terms  of
Section 246 of the  Act  to  be  an  appellate  forum  from  the  orders  as
enumerated in sub-section (1) thereof, but in absence of any   provision  in
the statute nominating the Deputy Director of Income Tax to be an  appellate
forum  for  any  order/decision  of  the   assessing   officer/I.T.O.,   the
inevitable conclusion is that the said authority  i.e.  Deputy  Director  of
Income Tax cannot be construed to be one before  whom  an  appeal  from  any
order/decision of any income tax authority, lower in rank  would  ordinarily
lie.
67.          The  Parliament   has  unmistakably   designated   the   Deputy
Commissioner (Appeals)  to  be  the  appellate  forum  from  the  orders  as
enumerated under Section 246(1) of the Act.  This however, in our  view,  as
observed  hereinabove  does  not  detract  from  the  recognition  of   this
authority to be the appellate forum before whom appeals from  the  decisions
of  an assessing officer or of an officer of the same  rank   thereto  would
generally and ordinarily lie even in the contingencies not  referred  to  in
particular in sub section 1 of Section 246.  This is more so, to  reiterate,
in absence of any provision under the Act envisaging the Deputy Director  of
Income Tax to  be  an  appellate  forum  in  any  eventuality  beyond  those
contemplated in Section 246(1) of the Act.  Neither  the  hierarchy  of  the
income tax authorities as listed in Section  116  of  the  Act  nor  in  the
notification issued under Section 118 thereof, nor their duties,  functions,
jurisdictions as prescribed by the cognate provisions alluded  heretobefore,
permit a deduction that  in  the  scheme  of  the  legislation,  the  Deputy
Director of Income Tax has been conceived also to be an appellate  forum  to
which appeals from the orders/decisions of  the  I.T.Os./assessing  officers
would ordinarily lie within the meaning of Section 195(4) of the Code.   The
Deputy Director of Income  Tax  (Investigation)-I  Bhopal,  (M.P.),  in  our
unhesitant opinion, therefore cannot be construed  to  be  an  authority  to
whom appeal would ordinarily lie from the decisions/orders  of  the  I.T.Os.
involved in the search proceedings in the case in  hand  so  as  to  empower
him to lodge the complaint in view of the restrictive preconditions  imposed
by Section 195 of the Code. The complaint filed by the  Deputy  Director  of
Income Tax, (Investigation)-I, Bhopal (M.P.), thus  on an  overall  analysis
of the  facts  of  the  case  and  the  law  involved  has  to  be  held  as
incompetent.
68.         The cavil on the competence of the Court of the  Chief  Judicial
Magistrate, Bhopal to entertain the complaint and  take  cognizance  of  the
offences alleged, though reduced to an academic exercise,  in  view  of  the
above determination needs to be dealt with in the passing.
69.          In  Y.  Abraham  Ajith  (supra),  the  issue   of   territorial
jurisdiction of the Trial Court in which a complaint had been filed  by  the
respondent No. 2  under Sections 498A and 406 IPC, in the face  of  Sections
177 and 178 of the Code surfaced for scrutiny. The defence raised  the  plea
that as no part of the cause of action constituting the alleged offence  had
arisen within the jurisdiction of the court before which the  complaint  had
been filed, it lacked competence to  entertain  the  same  and  conduct  the
trial following the submission  of  the  charge-sheet.   The  complaint  had
disclosed that the allegations levelled  therein  related  to  the  incident
that had happened at her previous  place  of  stay  beyond  the  territorial
limits of the court in which it had been filed.  This Court  after  dilating
on the scope and purport of Sections 177 and 178 of the Code as well as  the
judicially  expounded  connotation  of  the  expression  “cause  of  action”
sustained the objection to the maintainability  of  the  complaint.  It  was
noticed that there was  no  whisper  of  any  allegation  relatable  to  the
offences imputed  at  the  place  of  stay  of  the  complainant  where  the
complaint had been filed. It was thus held that no part of cause  of  action
did arise within the jurisdiction  of  the  Trial  Court  before  which  the
complaint had been filed and the proceedings resultantly were quashed.
70.         A similar fact situation obtained  in  Bhura  Ram  (supra)  also
involving offences  under  Sections  498A/406/147  IPC.   In  the  attendant
facts, it being apparent that no  part  of  the  cause  of  action  for  the
alleged offence had arisen or no part of  the  offence  had  been  committed
within the jurisdiction of the court before which  the  complaint  had  been
filed, the proceedings were quashed.
71.  Both these decisions on territorial jurisdiction, to start with  having
regard to the facts involved herein  are  distinguishable  and   are  of  no
avail  to  the  appellants.  As  hereinbefore  stated,  the  appellants   as
assesses, had  residences  both  at  Bhopal  and  Aurangabad  and  had  been
submitting their income tax returns at Bhopal. The  search  operations  were
conducted simultaneously both at Bhopal and  Aurangabad  in  course  whereof
allegedly the appellants, in spite of queries made, did  not  disclose  that
they in fact did hold a locker  located at Aurangabad. They in  fact  denied
to hold any locker, either individually or jointly.  The locker,  eventually
located, though at Aurangabad, has a perceptible co-relation or  nexus  with
the subject  matter  of  assessment  and  thus  the  returns  filed  by  the
appellants at Bhopal which in turn were  within the purview  of  the  search
operations.  The search conducted simultaneously at  Bhopal  and  Aurangabad
has to be construed as a single composite expedition with a common  mission.
 Having regard to the overall facts and the accusation  of  false  statement
made about the existence of the locker in such a joint drill, it  cannot  be
deduced that in the  singular  facts  and  circumstances,  no  part  of  the
offence alleged had been committed within the jurisdictional limits  of  the
Chief Judicial Magistrate, Bhopal.
72.         Chapter XIII of the  Code  sanctions  the  jurisdiction  of  the
criminal courts in inquries and trials. Whereas  Section  177  of  the  Code
stipulates the ordinary place of inquiry and trial, Section  178  enumerates
the places of inquiry or trial.  In terms of Section 179, when an act is  an
offence by reason of anything which has  been  done  and  of  a  consequence
which has  ensued, the offence may be inquired into or  tried   by  a  court
within  whose  local  jurisdiction  such  thing  has  been  done   or   such
consequence has ensued.  For immediate reference, Sections 177 and  178  are
extracted hereinbelow.
“177: Ordinary place of inquiry and trial – Every offence  shall  ordinarily
be inquired into and tried by a court within  whose  local  jurisdiction  it
was committed.

178: Place of inquiry or trial – (a) When  it  is  uncertain  in  which   of
several local areas an offence was committed, or

(b)  where an offence is committed partly in one local area  and  partly  in
another, or

(c)   where an offence is continuing one, and continues to be committed   in
more local areas than one, or

(d)   where it consists of several acts done in different  local  areas,  it
may be inquired into or tried by a court having  jurisdiction  over  any  of
such local areas.

73.         As would be evident from hereinabove, ordinarily  every  offence
ought to be   inquired  into  and  tried  by  a  court  within  whose  local
jurisdiction it had been  committed as is mandated by  Section  177  of  the
Code.   Section  178,  however   marks  a  departure   contingent   on   the
eventualities as listed in clauses (a),(b), (c) and (d) of  Section  178  to
identify the court  that would have the jurisdiction  to try   the  offences
as contemplated therein.
74.         Though the concept of  “cause of action“   identifiable  with  a
civil  action   is  not  routinely   relevant   for  the  determination   of
territoriality of criminal courts  as  had  been  ruled  by  this  Court  in
Dashrath Rupsingh Rathod vs. State of Maharashtra and Another, (2014) 9  SCC
129,  their Lordships however were cognizant of the word  “ordinarily”  used
in Section 177 of the Code to  acknowledge  the  exceptions   contained   in
Section 178 thereof.  Section 179 also did not elude notice .
75.         Be that as it may,  on a cumulative  reading  of  Sections  177,
178 and  179  of  the  Code  in  particular   and  the  inbuilt  flexibility
discernible in the latter two provisions, we are of the  comprehension  that
in the attendant facts and circumstances of the case  where   to  repeat,  a
single and combine search operation had been undertaken simultaneously  both
at Bhopal and Aurangabad for the same purpose, the alleged  offence  can  be
tried by courts otherwise competent at both the aforementioned  places.   To
confine the jurisdiction within the territorial  limits   to  the  court  at
Aurangabad would amount, in our  view,  to   impermissible    and  illogical
truncation  of  the  ambit  of  Sections  178  and  179  of  the  Code.  The
objection with regard to the competence of the Court of the  Chief  Judicial
Magistrate, Bhopal is hereby rejected.
76.         The inevitable consequence of the determination in its  entirety
however is that the complaint is unsustainable in law  having been filed  by
an authority, incompetent in terms of Section 195 of the Code.
77.         In the result, the appeal succeeds and the  impugned  proceeding
and the order assailed are set-aside. The  respondent  is  however  left  at
liberty to take appropriate steps in the matter, as available in law, if  so
advised.

                           ….....…....................................J.
                                              (PINAKI CHANDRA GHOSE)



                         .............................................J.
                                                   (AMITAVA ROY)
NEW DELHI;
AUGUST 31,  2016.