The Special Court summoned me on a benami complaint without examining the complainant, and I live outside its jurisdiction. Can I get the summoning order quashed?
Not on that ground. Where the complaint is made by a public servant acting in discharge of his official duties, the proviso to s.200 CrPC relieves the court of the need to examine the complainant and his witnesses. Section 202 CrPC does not prescribe how the inquiry is to be held, and perusal of the averments in the complaint together with the documents filed with it satisfies it. The application under s.482 CrPC was dismissed.
Decided by the High Court (Subhash Vidyarthi J) on 2024-06-04, reported as Application under Section 482 Cr.P.C. No. 5145 of 2024; Neutral Citation 2024:AHC-LKO:42357 (High Court of Judicature at Allahabad, Lucknow Bench). It bears on section Benami s.3, section Benami s.50, section Benami s.53, section CrPC s.200, section CrPC s.202, section CrPC s.482, section 132 of the Income Tax Act 1961, in Prosecution matters.
It is the answer to the standard objection to a summoning order on a departmental benami complaint - that no inquiry was held under s.202 CrPC before summoning an accused residing outside the court's jurisdiction. It is also one of the few decisions on a prosecution under s.53 of the Act.
Binding within that High Court's jurisdiction. Persuasive elsewhere.
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A complaint was filed by the Union of India through the Deputy Commissioner of Income Tax, Benami Prohibition Unit, Kanpur, under s.53 read with s.3 of the Prohibition of Benami Property Transactions Act 1988. On a search under s.132 of the Income-tax Act on 18 January 2017 it emerged that Rs. 30,00,000 in cash had been deposited into the account of M/s Shyam Trading Company on 12 November 2016, of which Rs. 7,50,000 was transferred the same day to the applicant's Axis Bank account by NEFT. Ghanshyam Patel denied ownership of the money. In the Benami Prohibition Unit's inquiry the applicant admitted on oath that the Rs. 7,50,000 was his own unaccounted cash deposited during demonetisation. The IX Additional Sessions Judge, Lucknow, designated a Special Court under s.50 of the Act, took cognizance and summoned the applicant by order dated 27 February 2024. The applicant, who resides in New Delhi and so outside the court's territorial jurisdiction, moved the High Court under s.482 CrPC contending that s.202 CrPC required an inquiry before process could issue.
The application under s.482 CrPC was dismissed as lacking merit (para 20). There was no illegality in the order dated 27 February 2024 taking cognizance and summoning the applicant to face trial, and in any case it did not cause a failure of justice (para 19). A summoning order passed after considering the averments in a complaint filed by the Union of India through a public servant, after perusing the documents filed with the complaint and after recording satisfaction that there is sufficient ground for proceeding, fulfils the requirement of holding an inquiry under s.202 CrPC (para 18).
On s.200 CrPC the Court set out the provision and held that where a public servant acting or purporting to act in the discharge of his official duties files a written complaint, the Magistrate need not record the statement of that public servant, relying on the Supreme Court in Cheminova India Limited v. State of Punjab, which had said that the legislature has itself placed the public servant on a different pedestal (paras 11 and 12). On s.202 CrPC the Court reasoned that the section merely directs the Magistrate to inquire into the case himself or direct an investigation, for the purpose of deciding whether or not there is sufficient ground for proceeding, and does not prescribe the manner of holding that inquiry; the Special Court had taken cognizance and summoned the applicant after considering the facts and recording satisfaction that the averments in the complaint and the documents filed with it disclosed sufficient ground (para 17). The inquiry at that stage is a limited one, meant only to ascertain whether any case for summoning the accused is made out, and perusal of the complaint made through a public servant and examination of the accompanying documents was enough to satisfy it (para 18).
Section 202 Cr.P.C. does not prescribe the manner of holding an enquiry under this provision.
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Handle my notice → Ask a CA on WhatsAppNot on that ground. Where the complaint is made by a public servant acting in discharge of his official duties, the proviso to s.200 CrPC relieves the court of the need to examine the complainant and his witnesses. Section 202 CrPC does not prescribe how the inquiry is to be held, and perusal of the averments in the complaint together with the documents filed with it satisfies it. The application under s.482 CrPC was dismissed. This was decided by the High Court (Subhash Vidyarthi J) and bears on section Benami s.3, section Benami s.50, section Benami s.53, section CrPC s.200, section CrPC s.202, section CrPC s.482, section 132 of the Income Tax Act 1961. It is reported as Application under Section 482 Cr.P.C. No. 5145 of 2024; Neutral Citation 2024:AHC-LKO:42357 (High Court of Judicature at Allahabad, Lucknow Bench). It is the answer to the standard objection to a summoning order on a departmental benami complaint - that no inquiry was held under s.202 CrPC before summoning an accused residing outside the court's jurisdiction. It is also one of the few decisions on a prosecution under s.53 of the Act. If it applies to you, the first step is this: Check who signed the complaint. If it is a public servant acting in discharge of official duty, the proviso to s.200 CrPC applies and the absence of a complainant's statement is no ground of challenge.
A complaint was filed by the Union of India through the Deputy Commissioner of Income Tax, Benami Prohibition Unit, Kanpur, under s.53 read with s.3 of the Prohibition of Benami Property Transactions Act 1988. On a search under s.132 of the Income-tax Act on 18 January 2017 it emerged that Rs. 30,00,000 in cash had been deposited into the account of M/s Shyam Trading Company on 12 November 2016, of which Rs. 7,50,000 was transferred the same day to the applicant's Axis Bank account by NEFT. Ghanshyam Patel denied ownership of the money. In the Benami Prohibition Unit's inquiry the applicant admitted on oath that the Rs. 7,50,000 was his own unaccounted cash deposited during demonetisation. The IX Additional Sessions Judge, Lucknow, designated a Special Court under s.50 of the Act, took cognizance and summoned the applicant by order dated 27 February 2024. The applicant, who resides in New Delhi and so outside the court's territorial jurisdiction, moved the High Court under s.482 CrPC contending that s.202 CrPC required an inquiry before process could issue. The matter was decided on 2024-06-04 by the High Court (Subhash Vidyarthi J). On those facts the High Court held as follows. The application under s.482 CrPC was dismissed as lacking merit (para 20). There was no illegality in the order dated 27 February 2024 taking cognizance and summoning the applicant to face trial, and in any case it did not cause a failure of justice (para 19). A summoning order passed after considering the averments in a complaint filed by the Union of India through a public servant, after perusing the documents filed with the complaint and after recording satisfaction that there is sufficient ground for proceeding, fulfils the requirement of holding an inquiry under s.202 CrPC (para 18).
On s.200 CrPC the Court set out the provision and held that where a public servant acting or purporting to act in the discharge of his official duties files a written complaint, the Magistrate need not record the statement of that public servant, relying on the Supreme Court in Cheminova India Limited v. State of Punjab, which had said that the legislature has itself placed the public servant on a different pedestal (paras 11 and 12). On s.202 CrPC the Court reasoned that the section merely directs the Magistrate to inquire into the case himself or direct an investigation, for the purpose of deciding whether or not there is sufficient ground for proceeding, and does not prescribe the manner of holding that inquiry; the Special Court had taken cognizance and summoned the applicant after considering the facts and recording satisfaction that the averments in the complaint and the documents filed with it disclosed sufficient ground (para 17). The inquiry at that stage is a limited one, meant only to ascertain whether any case for summoning the accused is made out, and perusal of the complaint made through a public servant and examination of the accompanying documents was enough to satisfy it (para 18). In the words reproduced by the source cited on this page: "Section 202 Cr.P.C. does not prescribe the manner of holding an enquiry under this provision." The decision followed or applied Cheminova India Limited v. State of Punjab, 2021 SCC OnLine SC 573 - applied on the position of a public servant complainant under the proviso to s.200 CrPC; Vishwakalyan Multistate Credit Coop. Society Ltd. v. Oneup Entertainment (P) Ltd., 2023 SCC OnLine SC 1749 - referred to; Rosy v. State of Kerala (2000) 2 SCC 230 - referred to; Azim Premji v. State of U.P., 2024 SCC OnLine All 1956 - referred to; Divyajot Singh Jendu v. Manikaran Analytics Ltd., 2022 SCC OnLine Cal 200 - referred to.
It was decided by the High Court on 2024-06-04 and is reported as Application under Section 482 Cr.P.C. No. 5145 of 2024; Neutral Citation 2024:AHC-LKO:42357 (High Court of Judicature at Allahabad, Lucknow Bench). Binding within that High Court's jurisdiction. Persuasive elsewhere. A High Court decision binds the assessing officer, the Commissioner (Appeals) and the Income Tax Appellate Tribunal within that state, and is persuasive elsewhere. If your assessment is in a different jurisdiction, check whether your own High Court has taken the same view before relying on it. On section Benami s.3, section Benami s.50, section Benami s.53, section CrPC s.200, section CrPC s.202, section CrPC s.482, section 132, the practical question is whether the facts of your own notice match the facts of this case closely enough for the same rule to apply.
It helps the department, and it appears in this library for that reason — you need to know what the Assessing Officer will cite against you. The application under s.482 CrPC was dismissed as lacking merit (para 20). There was no illegality in the order dated 27 February 2024 taking cognizance and summoning the applicant to face trial, and in any case it did not cause a failure of justice (para 19). A summoning order passed after considering the averments in a complaint filed by the Union of India through a public servant, after perusing the documents filed with the complaint and after recording satisfaction that there is sufficient ground for proceeding, fulfils the requirement of holding an inquiry under s.202 CrPC (para 18). It arises in Prosecution matters, on section Benami s.3, section Benami s.50, section Benami s.53, section CrPC s.200, section CrPC s.202, section CrPC s.482, section 132 of the Income Tax Act 1961, and was decided by Subhash Vidyarthi J. Before relying on it, read the source linked on this page and check whether it has since been distinguished, overruled or overtaken by an amendment to the Income Tax Act. In practice the steps that follow from it are these. Do not rest a s.482 application on the bare absence of a recorded s.202 inquiry; the Court held that the manner of the inquiry is not prescribed and that scrutiny of the complaint and its annexures suffices. Attack the summoning order instead on whether there was material to record satisfaction that there is sufficient ground for proceeding - that is the finding the Special Court has to make. Check the date of the transaction against 1 November 2016 before arguing that the 2016 amendment cannot found a prosecution; here the deposit and transfer were on 12 November 2016 and the point did not arise. Remember the Special Court under s.50 of the Act is a Sessions Court designated for the purpose, so proceed accordingly on forum.
Searched for later treatment; none was found. That is not the same as a source affirming it. No decision applying, affirming, doubting or overruling this judgment was located from the documents opened. The judgment does not refer to Union of India v. Ganpati Dealcom or to the retrospectivity of the 2016 amendment, and is not affected by the recall of that judgment on 18 October 2024 in Review Petition (Civil) No. 359 of 2023, 2024 INSC 799 - the transaction here is of 12 November 2016, after the amendment came into force. No source could be cited for that finding. Checking whether an authority still stands matters as much as knowing what it held: a decision may be overruled on one point and survive on another, or the provision it interprets may have been amended since. Read the source and the editor's note on this page before relying on it in a reply to an Assessing Officer or in an appeal.
The discovery note did not record that the transaction fell after 1 November 2016, which is why no retrospectivity question arose and why this decision cannot be read as endorsing a prosecution for a pre-amendment transaction. The applicant's admission on oath that the money was his own unaccounted cash is what the Special Court had before it, so the decision on the sufficiency of the s.202 inquiry rests on a record that was not thin. The document is complete and carries the neutral citation 2024:AHC-LKO:42357. This library shows the verification state of every entry openly. This entry has not yet been read in full by a chartered accountant. The summary reflects the sources listed on this page. Read the source before you rely on it in a reply to an Assessing Officer or in an appeal before the Commissioner (Appeals) or the Income Tax Appellate Tribunal.
The application under s.482 CrPC was dismissed as lacking merit (para 20). There was no illegality in the order dated 27 February 2024 taking cognizance and summoning the applicant to face trial, and in any case it did not cause a failure of justice (para 19). A summoning order passed after considering the averments in a complaint filed by the Union of India through a public servant, after perusing the documents filed with the complaint and after recording satisfaction that there is sufficient ground for proceeding, fulfils the requirement of holding an inquiry under s.202 CrPC (para 18).
TaxSphere, “Sandeep Miglani v Union of India”, https://taxnotice.vittsphere.com/caselaw/case/sandeep-miglani-v-uoi-benami-s53-summoning-s202-crpc/ (validity last checked 2026-09-16)
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