KERALA STATE CIVIL SUPPLIES CORPN. LTD., vs. THE ASSISTANT COMMISSIONER OF INCOME TAX,
What did the High Court hold?
The High Court, while acknowledging that it could not find infirmity in the reasons stated by the Magistrate for dismissing the application, considered the totality of the circumstances. The Court held that it is essential to grant an opportunity to the petitioner to cross-examine the witnesses and adduce his evidence. The omission to cross-examine the prosecution witnesses, though attributable to the petitioner, could lead to prejudice and delay. Therefore, as a last chance, an opportunity should be granted. To avoid a one-sided prosecution and potential delay, the application to recall witnesses for cross-examination and to adduce defence evidence was allowed on terms. The impugned order was set aside, and the application was allowed on payment of a cost of Rs. 2,500/- to the Kerala Legal Services Authority by June 19, 2024. PW1 and PW2 are to be cross-examined between July 22, 2024, and July 29, 2024. The petitioner will also bear the cost of procuring the witnesses again. The Court expressly left undecided the merits of the case itself, focusing solely on the procedural aspect of allowing further evidence.
What were the facts?
The petitioner, P.M. Abdul Nazeer, is the accused in C.C. No. 1124 of 2017 before the Additional Chief Judicial Magistrate Court (Economic Offences), Ernakulam, facing prosecution under Sections 276C and 276CC of the Income Tax Act, 1961. During the trial, the defence counsel failed to cross-examine prosecution witnesses PW1 and PW2 when they were examined on January 10, 2024, and February 1, 2024, respectively. Subsequently, the petitioner filed an application under Section 311 Cr.P.C. to reopen evidence for cross-examination, which was dismissed by the Magistrate on April 5, 2024, citing vagueness, incompleteness, and an attempt to delay proceedings. This petition challenges that dismissal order.
What were the issues?
1. Whether the Additional Chief Judicial Magistrate erred in dismissing the application filed under Section 311 Cr.P.C. to reopen evidence for cross-examination of prosecution witnesses PW1 and PW2 and to adduce defence evidence, considering the petitioner's failure to cross-examine them during the trial? (Question of law and fact, turning on Section 311 Cr.P.C. and principles of natural justice). Assessee's Contention (Petitioner): The petitioner sought to reopen evidence to cross-examine the prosecution witnesses and present defence evidence. The failure to cross-examine was an omission that could lead to prejudice and unduly prolong the proceedings. An opportunity should be granted as a last chance to ensure a fair trial. Revenue's Contention (Respondent): The State and the Income Tax Department contended that the application was vague, incomplete, and an attempt to delay the proceedings. The relevancy of the evidence sought to be adduced was not ascertainable, and the specific grounds were not stated in the application.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
JUDGMENT Petitioner is the accused in C.C.No.1124/2017 on the files of the Additional Chief Judicial Magistrate Court (Economic Offences) Ernakulam. He is being prosecuted for the offences under Section 276C and 276 CC of the Income Tax Act, 1961. After the trial commenced, when PW1 was examined on 10.01.2024, the counsel appearing for the accused did not cross-examine the witness. Subsequently, when PW2 was examined on 01.02.2024, again, the witness was not cross-examined by the defence. The learned Chief Judicial Magistrate thereafter, proceeded with the trial. Later an application under Section 311 Cr.P.C, seeking to reopen the evidence to enable the petitioner to cross-examine PW1 and PW2. The said application, filed as C.M.P.No.1637/2024, has been dismissed by the impugned order dated 05.04.2024
I have heard Sri. M.P.Shameem Ahamed, the learned counsel for the petitioner as well as Sri. Jose Joseph, the learned Standing Counsel for the Income Tax Department.
The learned Chief Judicial Magistrate has, by an elaborate order, dismissed the application under Section 311 Cr.P.C, after observing that the application is vague and incomplete and also that it is an attempt to delay the proceedings. The learned Chief Judicial Magistrate also held that the relevancy of the evidence sought to be adduced is not at all ascertainable, nor is it specifically stated in the application.
Though this Court cannot find any infirmity in the reasons stated in the impugned order, considering the totality of the circumstances, it is essential that an opportunity be granted to the petitioner to cross- examine the witnesses and to adduce his evidence. During the trial, none of the witnesses were cross-examined. Though the failure can be attributed to the petitioner himself, the omission to cross-examine the prosecution witnesses can lead to prejudice, which in turn may delay or drag the proceedings in the ultimate analysis. Therefore, an opportunity ought to be granted, as a last chance. To avoid a possible delay due to a one sided prosecution, this Court is of the view that the application of the petitioner to recall the witnesses for cross-examination and to adduce defence evidence be allowed on terms.
Since the respondent had vehemently contended that the attempt of the petitioner is only to delay the matter, it is appropriate to fix a specific period within which the cross examination is completed. Having regard to the circumstances, the prosecution witnesses PW1 and PW2 can be made available for cross examination on a particular date and the cross examination be completed by the petitioner without delay.
In view of the above, the impugned order dated 05.04.2024 is set aside, and the application of the petitioner for cross examining the prosecution witnesses PW1 and PW2 and also to adduce the defence evidence, if any, is allowed on payment of a cost of Rs.2,500/- on or before 19.06.2024, to the Kerala Legal Services Authority and the receipt shall be filed before the Trial Court. PW1 and PW2 shall be cross-examined between 22.07.2024 and 29.07.2024. In case, petitioner fails to cross examine the witnesses within the above stipulated period, the learned Chief Judicial Magistrate will be free to proceed with the case. Needless to mention that the cost for procuring the witnesses once again, shall also be borne by the petitioner. Original petition is disposed of as above. BECHU KURIAN THOMAS JUDGE AMV/10/06/2024
Appendix — schedule of exhibits
More judgments on Section 276C
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- M/S. Marico Industries Ltd, Mumbai vs Deputy Commissioner of Income Tax, Central…ITSSA 661/MUM/2002[1988-97]Status: Disposed25 Oct 2023AY 1988-97
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