AVAN NELUM GIDWANI vs. PRINCIPAL COMMISSIONER OF INCOME TAX AND ORS

skt 17 WP-1592-2025.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 1592 OF 2025 Avan Nelum Gidwani … Petitioner Vs.

Mr. Harsh Jagtiani, Senior Advocate a/w. Ms. Jahnavi Vora i/b Adv. Jahnavi Vora, for the Petitioner. Mr. N.C. Ranganayakulu, for the Respondents.

CORAM : MADHAV J. JAMDAR, J. DATE : 22nd JUNE, 2026. P.C.:- 1) Heard Mr. Jagtiani, learned Senior Counsel appearing on behalf of the Petitioner and Mr. Ranganayakulu, learned Counsel appearing on behalf of the Respondents. 2) By the present Petition, the Petitioner has challenged the legality and validity of the order dated 17th January, 2025 passed by the learned Additional Chief Judicial Magistrate, 38th Court, Ballard Pier, Mumbai. 3) It is the submission of Mr. Jagtiani, learned Senior Counsel appearing for the Petitioner that although the learned Additional Chief Judicial 1/5

skt 17 WP-1592-2025.doc Magistrate has observed that an accused has no right of hearing prior to the issuance of process, Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 specifically provides that where a complaint is made in writing, the Magistrate shall not take cognizance of the offence without giving the accused an opportunity of being heard. Mr. Jagtiani, learned Senior Counsel has also placed reliance upon the judgment of the Supreme Court in Commissioner of Income Tax v. Bhupen Champak Lal Dalal and Another1. He further points out the order dated 6th July, 2015 passed by Division Bench of this Court in Writ Petition (L.) No. 1614 of 2015 filed by the present Petitioner and, in particular, to the observations contained in paragraph 10 thereof. On the basis of the aforesaid submissions, it is contended that the impugned order is liable to be quashed and set aside and that the matter be remanded to the learned Additional Chief Judicial Magistrate for fresh consideration in accordance with law. 4) On the other hand, Mr. Ranganayakulu, learned Counsel appearing for the Respondents, supports the impugned order. He submits that the liberty granted by said order dated 6th July, 2015 to approach the Criminal Court, contemplates that the same to be exercised only after the issuance of process. Learned Counsel has invited the Court's attention to the order dated 1st December, 2025 passed by the learned Commissioner of Income Tax (Appeals)-51, Mumbai. Learned Counsel further submits that Section 1 2001 All M.R. (Cri.) 1208 2/5

skt 17 WP-1592-2025.doc 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 has no application to the facts of the present case. 5) Perusal of the record shows that the Division Bench of this Court in Writ Petition (L) No. 1614 of 2015 filed earlier by the present Petitioner challenging an order of assessment dated 28th March, 2014 and of penalty dated 16th September, 2014, while disposing of the said Petition, in paragraph 10 of the order, observed as under : “10 As far as the issue of criminal prosecution is concerned, we see no reason to entertain the Petition. The Petitioner was aware of the fact that there are proceedings where the income has been assessed to tax and an assessment order has been passed. That was adverse to the interest of the Petitioner and therefore an Appeal was filed. In the substantive Appeal, an application for stay was filed and that was also heard and decided. In the meanwhile, the penalty proceedings were initiated. Even those concluded against the Petitioner and Appeal has been filed to challenge the order in the same. Even therein, an application for stay was filed and on which, orders have been passed. In the circumstances, if the criminal prosecution is initiated, we have no doubt that all defences are available including pointing out to 3/5

skt 17 WP-1592-2025.doc the competent Criminal Court that substantive proceedings are pending and it should await the outcome of the same. In the event any such application is made and the outcome thereof is adverse to the Petitioner, we have no doubt that the Petitioner can approach the competent Court and request it to pass appropriate orders. It is at that stage that reliance can be placed on the principles laid down in the case of Bhupen Champak Lal Dalal (supra). Presently, we are not required to go into the same.” 6) In paragraph 13 of the said order, a statement made on behalf of the Respondents was recorded to the effect that the Appeal preferred by the Petitioner challenging the assessment order dated 28th March, 2014 and the penalty order dated 16th September, 2014 would be disposed of within a period of three months from the date of receipt of a copy of the order. The said Appeal challenging the said order dated 28th March, 2014 has been disposed of by order dated 1st December, 2025. 7) Thus, in the facts and circumstances of the case, the following order is passed : i. The impugned order dated 17th January, 2025 passed by the learned Additional Chief Judicial Magistrate, 38th Court, Ballard Pier, Mumbai, is quashed and set aside. 4/5

skt 17 WP-1592-2025.doc ii. The application dated 5th December, 2015 filed in Criminal Complaint No. 118/SW/2025 (Exhibit I, pages 234 to 236) and the application dated 31st August, 2015 filed in Criminal Complaint No. 119/SW/2025 (Exhibit J, pages 260 to 262), being Exhibit-4 applications in the respective complaints, are restored to the file of the learned Additional Chief Judicial Magistrate, 38th Court, Ballard Pier, Mumbai. iii. The learned Magistrate is requested to decide the said applications expeditiously in accordance with law, considering that the Petitioner is a senior citizen aged 86 years. iv. It is clarified that all contentions of the parties are expressly kept open. 8) The Writ Petition is disposed of in the aforesaid terms.

(MADHAV J. JAMDAR, J.) 5/5