"S.B. CRIMINAL MISC. PETITION NO.793/2011 (Dr. Gunjan Jain & Anr. Vs. Dy. Director of Income Tax, Jaipur) 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. CRIMINAL MISC. PETITION NO.793/2011 (Dr. Gunjan Jain & Anr. Vs. Dy. Director of Income Tax, Jaipur) Date of Order : 20th January, 2015 HON'BLE MR. JUSTICE M.N.BHANDARI Mr.Sanjay Jhanwar, for the petitioner/s. Mr.R.R.Baisla, Public Prosecutor for the State. Mr.R.B.Mathur, for the complainant/s. By the Court: By this criminal misc. petition, a challenge is made to the complaint so as the order of cognizance. Learned counsel for the petitioners submits that after search and seizure, complaint was lodged against the petitioners for an offence under Section 277 of Income Tax Act (for short “the Act”). During the pendency of complaint and after passing the order of cognizance, the matter has been decided by the Settlement Commission. Therein, other than imposing tax along with interest, no penalty was imposed. The petitioners were given immunity from the prosecution. In the light of the subsequent development, the complaint so as the order of cognizance deserve to be quashed. Per contra, learned counsel for the complainant/s submits that after the order of cognizance, the Settlement S.B. CRIMINAL MISC. PETITION NO.793/2011 (Dr. Gunjan Jain & Anr. Vs. Dy. Director of Income Tax, Jaipur) 2 Commission had passed the order. It is, however, in regard to search and seizure conducted by the Department. The issue still remains in regard to the statements made by Shri Sanjay Jain during the course of search and seizure. The statement aforesaid was false, thus he is liable to be prosecuted, hence, interference in the complaint as well as in the order of cognizance may not be made. I have considered the submissions made by learned counsel and perused the record. The perusal of the complaint makes a reference of search and seizure. The issue of search and seizure and consequence thereupon, was taken up by the petitioner – assessee before the Settlement Commission. After hearing both the parties, a detailed order was passed. The liability of tax along with interest was imposed but no penalty was fastened. The petitioners were given immunity from the prosecution. In view of the aforesaid, the question remains as to whether persecution can be continued in reference of the statement of Shri Sanjay Jain. In my opinion, statement of Shri Sanjay Jain was part of search and seizure and later on, subject matter of the decision taken by the Settlement Commissioner. The complete material was with the Settlement Commission, thus it could have passed an S.B. CRIMINAL MISC. PETITION NO.793/2011 (Dr. Gunjan Jain & Anr. Vs. Dy. Director of Income Tax, Jaipur) 3 appropriate order while imposing tax along with interest. It could have been for penalty apart from the prosecution. The fact is, however, that other than imposition of tax with interest, penalty was not imposed and at the same time, immunity from the prosecution has been given. The statement of Shri Sanjay Jain cannot be taken separately when it was part of the proceedings of search and seizure and subject matter before the Settlement Commissioner. In view of above and subsequent events, the complaint would not be maintainable now so as the order of cognizance. Accordingly, both are quashed. With the aforesaid, this criminal misc. petition is allowed so as the stay application. (M.N. BHANDARI), J. S/No.104 Preeti, P.A. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. Preeti Asopa P.A. "
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