Documents seized during the search cannot be returned before the completion of Investigation: Karnataka HC

Writ Petition filed before the Karnataka HC under article 226 and 227 of Constitution of India against the FIR dated 28.02.2017 and notice issued dated 13.04.2017 under section 91 of Crpc and a letter dated 20.06.2017.

Facts

On 15.03.2016 search and seizure were initiated by the Director General of Income tax under section 132 of the Act at the residence of the complainant and several incriminating documents were found with the diary during the search were seized.

Petitioner stated that Diary had recordings of various transactions with abbreviations and amounts against each of the abbreviations.

At that point of time, the complainant was in Goa for vacations. The search warrant was issued against the complainant and was executed even to the hotel where complainant was staying. Thereafter complainant returned to his residence and during the search he was questioned about the diary.

On 28.02.2017 complainant registered FIR before the Station House Officer, Indiranagar, Bangalore, charges were filed against the Commissioner of Income Tax under Section 219, 199, 193, 182, 341, 406, 409, 457, 380, 466, 471, 472, 166-A, read with section 34, 109, 120-B of IPC which were unknown to the petitioner.

On 13.04.2017 notice was issued by the Police Commissioner to the petitioner for returning back the diary of the complainant.

Thereafter, in response petitioner filed an appeal before the Karnataka HC.

Findings

Under section 138(2) of the Income Tax act the notice issued by the police on 13.04.2017. would be contrary to law. Since the notice was issued in response to FIR registration which was itself wrong before the eye of law. It was clearly seen that the notice issued on 13.04.2017 was for asking the petitioner to return the Diary specifically. Also, it was seen that in the FIR registered by the complainant the main subject was the Dairy.

In CIT v. Parameshvari Devi Sultana, the Hon’ble Supreme Court was considering whether civil suit be maintainable against Income Tax Officials who have performed their act under section 132 of the Income Tax Act regarding search and seizure. The Supreme Court held that the trial court and high court were not correct in rejecting the contention of the revenue and holding that the suit was not barred under section 293 of the act.

Judgment

The Karnataka HC held that the FIR registered on 28.02.2017 against the petitioner the Police Officer is quashed and Writ petition is allowed.