Andhra Pradesh H.C : Where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.

High Court Of Andhra Pradesh

Commissioner Of Police & Ors. vs. Sadruddin H. Javeri & Ors.

Section 132A

N.Y. Kanumanthappa & V. Rajagopa;a Reddy, JJ.

Rev. W.P.M. Nos. 34434, 36061 & 36129 of 1997 and 5942 of1998 and

C.C. Nos. 1797 & 1798 of 1997 and W.P. Nos. 4926 & 17700 of 1996

13th October, 1998

ORDER

V. Rajagopala Reddy, J.

1. The above Review Petitions and Contempt Cases are filed seeking review of the common judgment of this Court in Writ Petitions Nos.4926 and 17700 of 1996, dated 17-10-1997 and complaining that the directions given in the judgment were not complied with. Hence, all the review petitions and contempt cases are taken up together for disposal by a common order.

2. Rev. WPMP Nos.36129 and 36061 of 1997 are filed by the 3rd respondent in both the writ petitions-Commissioner of Police, Hyderabad.

3. Rev. WPMP No.5942 of 1998 is filed by 4th respondent in WP No.4926 of 1997.

4. Rev. WPMP No.34434 of 1997 is filed by 8th respondent in WP No.4926 of 1997 and respondents 4, 5 and 6 in WPNo.17700 of 1996.

5. Contempt Cases Nos.1797 and 1798 of 1997 are filed by the writ petitioner in both the writ petitions.

Rev.WPMP Nos.36129. 36061 & 34434 of 1997 & 5942 of 1998:

Before we proceed to consider the review petitions, it is necessary to notice the facts of the case, in brief, and disclosed in the judgment, which is.

6. The parties are mentioned as they are shown in the writ petitions. The petitioner moved the Court under Article 226 of the Constitution of India, alleging inter alia, that the respondents-Police Officials have interfered with his right under Article 21 of the Constitution by entering into his residential house in Jubliee Hills, Hyderabad, seized various articles, falsely registered a criminal case and committed various atrocities. He, therefore, sought for adequate compensation. The petitioner was earlier appointed as Principal Advisor of the ex-Nizam of Hyderabad and the Head of the Managing Committee called Sarfe-Khas, in August, 1990. Nizam severed relations with the petitioner in 1995 and withdrew his powers. It was alleged that in Feburary, 1996 in the absence of the petitioner and his wife, the respondents-Police officials along with a posse of policemen raided his house without a search warrant and his house was ransacked. His infant son was locked-up in a room along with the neighbour’s child. Crime No.26 of 1996 was registered against the petitioner. The Commissioner of Police (R3), issued statements that antiques were recovered from the house of the petitioner, which were of the estimated value of Rs.10 crores. A cash of Rs.3,50,000/- was missing from the house of the petitioner. These were allegations in the writ petition.

7. The case of the 3rd respondent was that he had nothing to do with the raid of the house or the investigation in the case and also the seizure of the articles. The allegation about the publicity given by him was also denied. The 4th respondent also denied the allegations made against him. By the time he along with other police officials went to the premises of the petitioner on 5-2-1996, the search and seizure was already effected. He also stated that he gave instructions to the concerned officials to safely hand over the articles seized. He further averred that he was not aware of the locking-up of the child in the premises. The 5th respondent was the main contesting respondent in WP 4926 of 1996. He filed counter affidavit and stated that the Nizam has addressed a letter though his G.P. A Holder on 9-9-1995 to the I.G. of Police, CID, complaining that the petitioner and his associates have unathorisedly removed, with dishonest intention, valuable items of property from the palaces of Nizam and committed the offences of cheating criminal misappropriation and criminal breach of trust. It was requested that suitable action be taken against the petitioner and his accomplices. A letter was also addressed to the Hon. Chief Minister, subsequently, complaining about the failure of investigation in the case and stating that 63 items of valuable property worth about Rs.2.5 crores had been clandestinely removed from his palaces. On the directions of Hon.Chief Minister, the Director General of Police entrusted the matter to the Deputy Commissioner of Police, Detective Department, who has been investigating the matter. It was further averred that on information, 5th respondent had searched a Hotel at Nampalli and after questioning the persons, found under suspicious circumstances, he came to know that the petitioner and another by name Ram Bharose Gupta (R7) were involved in disposing of very valuable articles to a jewellery merchant, outside the State. Therefore, he contacted the Deputy Commissioner of Police, Detective Department and suggested that a suitable force should be urgently deputed to guard the houses of Ram Bharose Gupta and the petitioner. On instructions, accordingly, five policemen each were posted at the two premises on guard duty with strict instructions to ensure that no valuable articles were taken out of premises. He, thereafter, recorded the statements of the persons found in the Hotel indulging in disposing of the valuable articles and seized the articles found and took the accused to the Central Crime Station. Search operation was postponed to the next day. The statement of Ram Bharose Gupta was recorded, who admitted that one more gold cot leg and several other valuable articles were entrusted to him by the petitioner for sale. He also stated that several other valuable articles have been removed by the petitioner from the palaces of Nizam. The next day he searched the house of Ram Bharose Gupta and seized 42 items of property of the value of about Rs.4 crores 21 lakhs, which were suspected to be stolen property. Thereafter the house of the petitioner was also searched in accordance with law. 42 items of property of the value of Rs.3 crores 45 lakhs, including one unlicensed gun made in USA and a full bottle of Champagne and some loose liquor in an antique bottle were seized. The petitioner was figured as accused 6 in the criminal case.

8. In order to ascertain whether the respondent-police officers had acted within the bounds of law and bona fide and whether the petitioner had been unjustly subjected to harassment and whether on that account the petitioner was entitled for compensation, Sri H. J. Dora, Additional Director-General of Police CID Hyderabad, was appointed to investigate and report with all relevant material. Accordingly, the Addl, Director-General of Police CID (presently Director-General of Police), submitted his report stating that the city police officers raided the house of the petitioner on 4-2-1996 and collected some articles, but not on 5-2-1996 as indicated in the Case Dairy, there was truth in the mala fides attributed by the petitioner, there was correction as to the date of registering the crime and the liquor bottle and the gun were interpolated in the seizure list. It was also stated that the Commissioner of Police (R3) was not available for examination as he was busy with the visit of the President of India and other VIPs.

9. WPNo.17700 of 1996 is an of-shoot of the above state of circumstances. The Taxing Authorities, respondents 5 and 6 served notice upon the Investigating Officer who allegedly had the custody of the seized valuables under Section 132-A of the Income Tax Act (for short, ‘IT Act’) and obtained possession and custody of the seized valuables from the house of the petitioner. The petitioner therefore sought for a direction that the action of the respondents in handing over the properties of the petitioner to respondents 5 and 6, the Authorities under the IT Act as illegal, including the notices issued by respondents 5 and 6 and the enquiry either under Wealth Tax Act or under Income Tax Act as arbitrary and illegal.

10. It is necessary to notice that the investigation has ended in submission of the final report by the police before the XXI Metropolitan Magistrate, Hyderabad, stating that no offence either under Section 381 IPC or under Arms Act or under Antiques and Art and Treasures Act are made out and in view of the above a memo has been filed on behalf of the petitioners restricting the relief in the writ petitions to directions to the respondents to return to them the articles and cash which were seized in connection with Cr.No.26 of 1996. The petitioner, however, pressed for a direction to return Rs.2 lakhs 50 thousand allegedly seized from their premises as well as the articles seized from the premises.

11. Considering the facts of the case and the report submitted by the then Addl. Director-General of Police, CID the Court found that respondents 3 to 5 in WP 4926 of 1996 had disregarded the provisions of law in not producing the seized articles before the Court and held that the petitioner’s right under Article 21 of the Constitution has been violated by the search and seizure of the properties and that they had by-passed the Court of the teamed Magistrate, which alone was competent to decide about the custody of the properties, and directed to handover the properties as per the seizure list except items 4 & 5. The 1st respondent in WP 4926 of 1996 was directed to pay to the petitioners towards compensation amount an amount of Rs.5 lakhs within 3 months, on condition that the Government would be free to proceed departmentally against respondents 3 to 5, to recover from them the said amount or otherwise suitably deal with them in accordance with law. It was further held that the petitioners were also entitled to sue the 5th repondent and others for compensation, if any, in accordance with law, for offences that might be found to have been committed by them. The above two writ petitions were accordingly disposed off.

12. In the Review Petitions filed by respondents 3 and 4, it is urged by the learned senior Counsel Sri E. Manohar and Sri T. Ananiha Babu appearing for 3rd respondent, and 4th respondent, respectively, that the judgment suffers from grave errors apparent on the face of the record. As the petitioner, having been satisfied with the filing of the final report before the learned Metropolitan Magistrate, by the police under Section 173(2) of Code of Criminal Procedure closing Cr.No.26 of 1996 that no offence has been committed by the petitioner, filed a memo in WP 4926 of 1996 confining the relief in the writ petition only to the return of the articles and cash alleged to have been seized from the premises of the petitioner, the Court was not justified in going into the question about the alleged violation under Article 21 of the Constitution and thereby awarding compensation against the 1st respondent, of an amount of Rs.5 lakhs, to be recoverable from the respondents 3 to 5 by the 1st respondent. It was contended that when a relief was withdrawn the Court has no power to grant the same.

13. Learned senior Counsel for the review petitioners further urged that the report of the Addl. Director-General of Police, CID who was asked to investigate and verify the truth or otherwise of the allegations made in the writ petitions and submit a report, should not have been relied upon by the Court for the reasons that the enquiry by the Court-Commissioner was ex. parle, the witnesses were not put on oath and the statements of the witnesses were not even supplied to the Court let alone to the respondents and the objections filed by the respondents to the report were not even noticed by the Court. Hence, the report could not have formed basis for any finding by the Court and it should have been discarded. It is further urged that after the memo was filed by the writ petitioner, the only question that was left out for consideration was, the return of articles seized by the Police. The nature of the raid or the conduct of the police officers did not fall for consideration at all.

Hence, it was strenuously contended that serious injustice was caused to respondent 4 due to the adverse remarks made against him, Learned senior Counsel for the writ petitioner Sri K. Subrahmcmya Reddy, however, submitted that the Court was aware of the fact that the writ petitioner confined his claim for the return of properties seized and yet the Court thought that it should award compensation. The award of compensation was therefore for violation of fundamental rights guaranteed under Article 21 of the Constitution of India. It was also contended that as the respondents have not urged this point before the Court during their arguments in the writ petition, they are not permitted to raise a new ground in the review petitions. It was further submitted that the direction to pay compensation was against the State Government and the State Government having not filed Review Petition, it was not open to the respondents 3 and 4 to file the same. He further submitted that the questions relating to the merits of the case cannot be gone into a review petition. The Court cannot set aside all errors of fact or law, but only grave or pulpable errors. It was further pointed out that the police officers have conducted the raid and seized articles in an unlawful manner and the Court has rightly found them responsible for such illegal raids.

14, It is now necessary to consider the scope of this Court’s power under Article 226 of the Constitution of India, in reviewing its own orders. In Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909, in a review petition filed under Order 47 Rule 1 CPC, the Supreme Court held that the power of review of its own order by the High Court inheres in every Court of plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it. In doing so, the Court was only upholding the principles of natural justice. This decision indicates that the Court’s power of review while exercising jurisdiction under Article 226 of the Constitution extends to correct all errors to prevent miscarriage of justice. In M/s. Thungabhadra Industries Ltd. v, the Government of Andhra Pradesh, , the distinction between an erroneous decision and a decision which can be characterised as vitiated by errors apparent, is brought out “where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.” A Division Bench of this Court, in which one of us (Sri N. Y. Hanumanthappa, J) is a party, in P. Neelakcmteswaramma v. Uppari Muihamma, , while considering the scope of review of this Court in exercise of jurisdiction under Article 226 of the Constitution, discussed the law laid down in various decisions of the Supreme Court and observed that –

“Review can be allowed only (1) discovery of new and important matter of evidence which, after exercise of due deligence, was not within the knowledge of the person seeking review, or could not be produced by him at the time when the order was made, or (2) when some mistake or error on the face of record is found, or (3) or any analogous ground. But review is not permissible on the ground that the decision was erroneous on merits as the same would be the province of an Appellate Court.”

15. The petitioner approached this Court alleging that respondent-police officials had raided his premises and unlawfully seized several articles without following the procedure contemplated under law, and registered a false criminal case against him. It was also alleged that the action of the respondent-police officials is in violation of fundamental rights guaranteed under Article 21 of the Constitution. The petitioner also sought for return of all the articles seized by the police and illegally handed over to the Income Tax authorities. Affidavits and counter-affidavits were filed by the respective parties and the writ petition came up for hearing. While the writ petition was being heard, the police had dropped the criminal case against the petitioner on the ground that no offence, either under IPC or Arms Act or Antiques and Art and Treasures Act, had been committed. The investigation against the petitioner has thus come to an end. Having been satisfied with the closure of the case, the petitioner filed the memo stating that in view of the subsequent events of the referring the case against the petitioner, requesting the Court that he would confine the writ petition only to the return of the articles and cash, which were allegedly seized in connection with the above crime, which is now closed. A perusal of the memo makes it abundantly clear that the petitioner wanted to withdraw all the reliefs prayed for in the writ petition, except the return of the articles and cash seized. While narrating the facts, in the judgment, the Court also noticed filing of the above memo. However, the Court awarded compensation to the petitioner for the alleged infraction of the rights guaranteed under Article 21 of the Constitution, on the sole ground that the respondents disregarded the provisions of law in conducting search of the premises and seizure of the properties. The grievance of the respondents 3 to 5 in these review petitions, therefore, is that the Court committed a serious error in granting the relief which was abandoned.

16. Law is well settled that when once a relief is withdrawn or given up, the Court will not be justified in considering the merits and demerits relating to the same issue and granting the relief. The Court has no power to consider the matters which were not put in issue in the case. It should also be noticed that under Order 23 Rule 1 CPC, the plaintiff is entitled to withdraw the suit or abandon part of his claim. We will not examine the decisions on this point cited by the learned senior Advocates Sri T. Anantha Babu and Sri E. Manohar. In Shaik Hussain & Sons v. M. G. Kannaiah & another, pending writ appeal the writ petitioner filed an application seeking to withdraw the writ petition. Despite the clear prayer, the High Court did not allow the writ petitioner to withdraw the writ petition and proceeded to hear the appeal and dismissed the same on merits. The Supreme Court observed that there was no necessity to go into the merits of the case when the writ petitioner himself did not want to invoke the writ jusridiction of the High Court or having invoked the same, does not want to press the writ petition. The judgment was set aside and the writ petition was dismissed as withdrawn.

17. In Moron Mar Basselios Catholicos v. Most. Rev, Mar Poulose Athanasius, AIR 1954 SC 526, the objection raised was that the Court had no power to consider and take adverse view in matters which were agreed to be left out. The Supreme Court held that-

“To decide against a party on matters which do not come within the issues on which the parties went to trial clearly amounts to an error apparent on the face of the record.”

18. But it is the case of the learned senior Advocate Sri Subrahmanya Reddy that even when a claim is withdrawn, when the Court’s conscience is pricked, the Court can grant compensation for the infraction of fundamental rights and this remedy and relief were conceived by the Supreme Court, though not provided by any statute. Learned senior Advocate cited A.K. Basit v. State of West Bengal, in support of this proposition. In this case the Supreme Court held:

“44. The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages for tortious acts of the public servants- Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitution is a remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their riglits and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.”

But it should be noticed that this writ petition was taken up on file on a letter addressed by the Executive Chairman, Legal Aid Services, West Bengal, requesting the Court to formulate modalities for awarding compensation to the family members of the victim of atrocities and deaths caused in police custody. Another letter received by the Honourable Chief Justice of India regarding the death of one Mahesh Bihari in police custody was also treated as writ petition in public interest. Considering the question of liabilities of the Government for the torious acts of the public servants, the Supreme Court made the above observation. Thus, the grant of compensation for custodial deaths, as a public law remedy, to the families of the victims in such torture was in question in the above writ petition. People’s Union for Civil Liberties v. Union of India, , is also a case filed in public interest under Article 32 of the Constitution to institute a judicial enquiry into fake encounters by the police, in which two persons were killed and to take action against the erring police officials and award compensation. Smt. Nilabati Begara alias Lalita Benara v. State of Orissa, , is yet again a case relating to a claim in public law for compensation for contravention of human riglits and fundamental freedoms and for compensation for the custodial deaths. These decisions, thus relate to cases in public interest relating to killings or deaths or deprivation of human freedoms where the Court has conceived and devised a remedy by way of compensation by the Government for the action of its “servants. These decisions have absolutely no application to the facts of the present case as it is not in public interest. Custodial death, victimisation by the police or arrest were neither alleged nor proved. The harassment alleged is also with regard to search and seizure of the articles but the Court has found that there was no such harassment. The petitioner was not at all in the country during the search and seizure. In the report submitted by the Director-General of Police it was clearly found that the police officials were also free from mala fides. Thus, the nature of the allegations in the writ petition relate to raid and seizure of certain articles from the premises of the petitioner and handing over the same to the Income Tax Authorities. The claim thus related to a grievance in private law and not in the realm of public law. Hence, the above decisions do not furnish any ground for the Court to have proceeded with the writ petition on matters relating to reliefs which were withdrawn and to award compensation, which course, the Supreme Court in Shaik Hussain case and in MM.B. Catholicos case (supra), held as committing serious error. The Bench proceeded to go into this issue, having noticed the memo filed by the petitioner, only on the ground that these matters were put in issue, and not on the premise that the petitioner was victimised by the police atrocities and as the Court’s conscience was pricked, it should award compensation. We are therefore, of the view that the objections raised in this regard by the learned senior Advocates are well founded.

19. Coming to the report of the Court-Commissioner, it is true that it is in the nature of a report of investigating officer. It is an ex parie report and it cannot be relied upon, by the Court for any purpose. However, the report was taken into consideration in certain parts, while reaching sonic conclusions by the Court. But a close scrutiny of the judgment indicates that the Court has elaborately and minutely considered the affidavits, counter-affidavits and other material on record and arrived at the findings independent of the report. It is a different matter if the report was behind the back of the minds of the learned Judges of the Bench. Whether the appreciation of the evidence on record is erroneous or not or whether there is sufficient evidence to justify the findings, should not be gone into in these review petitions. But even though, after the case was closed against him and no offence is made out under any of the enactments, the petitioner is entitled to the return of the articles from the police, but by then, as the Income Tax Department issued notices to the Police, the articles were handed over to them. He therefore, questioned the action of the police in entrusting the articles to the Income Tax officials. The Court rightly proceeded to consider whether such action was lawful or not and found It unlawful. Hence, a direction was given for the return of the articles to the petitioner. Having regard to the above facts, we do not find that the judgment is vitiated on the above grounds.

20. We will now proceed to consider about the maintainability of the review petitions. Sri Subrahmanya Reddy, learned senior advocate, contended that the review petitions arc not maintainable as the direction given by the Court is against the 1st respondent for payment of compensation. Hence, the grievance, if any, is only for 1st respondent and not for respondents 3 and 4. But, it should be noticed, that a clear direction was given that the Government was free to proceed Departmentally or to recover the said amount from the review petitioners and/or otherwise suitably deal with them in accordance with law. In view of this direction by the Court, it cannot be said that respondents 3 and 4 are not aggrieved by the judgment. At any time, the Government may proceed to recover Rs.5 lakhs from respondents 3 and 4. It should also be noticed that under Order 41 Rule 1 Code of Civil Procedure, any aggrieved party is entitled to seek review. Thus, there is no force in the contention with regard to maintainability of the review petitions.

21. Even the objection that the pleas are being raised for the first time in these petitions, is devoid of force, either. It is true that new pleas can not be raised in the review petitions, vide P. Neelakanteswaramma v. Uppari Muihamma (supra). This plea could not have been raised by the petitioners during the arguments in the writ petition. There was no occasion for them to raise that plea. It was only after the judgment was pronounced, the review petitioners came to know about the findings given in the judgment and the directions issued. There was no indication during the arguments in the writ petitions, that the Court would be granting compensation inspite of filing the memo. Hence, the review petitioners are entitled to raise the pleas as they did in the review petitions.

22. In the circumstances, we have no hesitation in allowing the review petitions of respondents 3 and 4, partly setting aside the directions with regard to award of compensation against or recovery of Rs.5 lakhs, from respondents 3 or 4 by the Government.

Rev. WPMP No.34434 of 1997:

It is contended by the Standing Counsel for the Income Tax Department, Sri S.R. Ashok, that he did not concede that Section 132-A of I.T Act docs not permit issuing of request to the Court of learned Metropolitan Magistrate, on the ground that the Court cannot be termed or identified as officer or authorities under Section 132-A of the I.T Act. The Assistant Commissioner of Income Tax filed an affidavit in support of this submission. It is argued that as the police was in immediate possession or custody of the articles, notice under Section 132-A of the I.T Act was issued to them, learned Counsel relied upon the decision in Commissioner of Income Tax, Hatyana, Himachal Pradesh and Delhi v. Tarsem Kumar, , in support of this plea. It is the case of the learned Counsel that it was still open to the Department to invoke the said provisions of law by filing an application before the Court, but the Counsel never conceded that Section 132-A of IT. Act could not be pressed into service against the Court. The decision in MM.B Catholicos case (supra) is relied upon to submit that this constitutes a ground for review.

23. Learned senior Counsel Sri Subrahmanya Reddy submits that the petitioner has to satisfy before the Court that the learned Counsel did not make such concession. He further submits that even if he has not conceded, the legal position remains unaltered. He relied upon the decision in Commissioner of Income Tax v. Balbir Singh, .

24. In para 11 of the judgment this Court clearly stated that the learned Counsel for the Income Tax Officers has conceded that-

“… Section 132-A of the Income Tax Act does not authorise any notice to the Court as by no stretch of imagination the Court can be identified as any officer or authority under any other law for the time being in force as contemplated under clause (c) of Section 132-A(1) read with clause (a) thereof.”

The Court thereafter proceeded to consider whether entry of Income Tax Officers to take delivery of the properties from the police before the seizure is reported to Court and the Court has passed any order as to its custody, is a grave violation of law. We are presently not concerned, with the validity of the above finding given by the Court. What is to be seen is whether learned Counsel has made such a concession. We are handicapped, however, in the absence of any record as to what actually happened before the Court during the arguments. We cannot, therefore, say whether learned Counsel in fact has not conceded, as alleged, or not. On the other hand, it must be seen that the stand of the Income Tax Department, was that it could issue notice to the police officers under Section 132-A of IT. Act and that it need not await until the property seized by the police was produced before the learned Magistrate. In that context it cannot be ruled out to visualise that the learned Counsel may have conceded as stated. As stated earlier, it is difficult to hold one way or another, but when a statement is made by the Court in the judgment, it should be taken as representing the true and correct facts. We are also of the view that this is a salutory principle.

25. It is next contended by the learned Counsel for the petitioner that the police seized 127 articles from the premises of the writ petitioner, but handed over only 124 articles and not handed over items 26,27, and 32. The writ petitioner in the writ petition sought for only 44 articles. Out of those 44 articles, the petitioner identified only 17 items and the remaining 27 items could not be identified by him. Now the Court directed release of all the articles seized by the police from the premises. It is the grievance of the petitioner that the Department is entitled to appropriate these articles of the petitioner, against petitioner’s arrears of income tax. Hence the direction to return the articles is not warranted.

26. Though it was prayed by the petitioner to set aside the notices issued under Section 132 and 132-A of IT Act and the enquiry that may be held in consequence thereof, the Court has not (sic) chosen not to grant any such reliefer to interfere with those proceedings. Hence, the Department is entitled to proceed with the enquiry. But, meanwhile as per the direction, the Income Tax Department is liable to return the articles to the petitioner. But it is made clear that the articles returned are subject to consequential orders that may be passed by the Department after enquiry is completed.

27. Accordingly tills Review Petition is dismissed, subject to the above observations.

Contempt Case Nos. 1797 & 1798 of 1997:

These contempt cases were filed by the writ petitioner stating that though the articles were directed to be returned forthwith in the Court, the Income Tax Department and the Police have not returned the articles and have kept with them. The grievance of the petitioner is that the stay orders in the Review Petitions were issued only on 26-12-1997 and as the judgment was delivered on 17-10-1997, the articles should have been returned immediately thereafter, which was not done. Hence, it was alleged that the respondent should be held as guilty of contempt of this Court.

28. It should be noticed that though the judgment was delivered on 17-10-1997 it would have taken some time for the authorities to have applied for certified copy of the judgment and for the office to furnish the certified copy. Meanwhile, this Court stayed the operation of the judgment on 26-12-1997 in the Review Petitions. As the operation of the judgment was stayed and as the matters have been heard from time to time, it cannot be said that the 1st respondent has wilfully violated the order of this Court. Further , as the Income Tax Department had seized the articles in dispute, the question of return of the articles by the Police does not arise. The Income Tax Department is directed to return the articles forthwith. We do not, therefore, find any merit in the Contempt Cases. The Contempt cases are dismissed, subject to the above direction.

29. In the result, the Review Petitions 36129 of 1997 26061 of 1997 and 5942 of 1998 are allowed partly setting aside the directions with regard to award of compensation of Rs.5 lakhs against respondents 3 and 4 and recovery of the same from them by the Government.

30. The Review Petition 34434 of 1997 is dismissed.

31. The Contempt Cases 1797 and 1798 of 1997 are dismissed.

[Citation : 243 ITR 602]

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