A) The Code of Criminal Procedure, 1973, is the codified legislation that governs the procedural aspect of the prosecutions under the Income-tax Act, 1961. Chapter XXII of the Act deals with prosecution and Section 290D(1) provides that the provisions of the Code of Criminal Procedure, 1973, shall apply to the proceedings before a special court as designated as per Section 280A of the Act.

Chapter XXX of the The Code of Criminal Procedure, 1973, deals with ‘Reference and Revision’. Section 397 of the code provides that the High Court or the Session Judge may call for an examine the record of any proceedings before any inferior criminal court situated within its or his local jurisdiction for the purpose of satisfying itself or himself; to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. This power is exercised as provided by Section 399, 400 and 401 of the Code.

The correct remedy to be exercised by the Director / Assessee/ Accused is to move the Court of Sessions for the revision of the order refusing discharge. The Hon’ble Apex Court has held that the revisional jurisdiction of High Court can be moved directly in Central Bureau of Investigation vs. State of Gujarat (2007) 6 SCC 156. This is because the statute given the aggrieved party an option of whether to approach the Court of Sessions or the High Court. The High Court of Rajasthan in Natwar Lal and Ors. vs. State and Ors. 2008 CriLJ 3579 observed as follows “it is clear that there is of-course no bar for filing revision directly to the High Court under Section 397 of the Code against the order of the Magistrate but when concurrent jurisdiction is given specially under such circumstances when both are superior courts one to the Magistrate and another to the Sessions, then the propriety demands that elder superior court in Hierarchy must be first approached. This is the customary common law as the first elders are always respected.” The order was passed affirming the order of the Hon’ble Bombay High Court in Shri Padmanabh Keshav Kamat vs. Shri Anup R. Kantak & ors. 1999 CRiLJ 122 (Bombay) where it was held that “In the case of Madhavlal v. Chandrashekhar (supra) there were special and exceptional circumstances which in a way justified filing of the revision application directly to the High Court. However, in the instant case no special circumstances which required the petitioner to by pass the forum of the Sessions Judge and rush directly to the High Court, are pointed out. The petitioner could have very well filed his application even before the Sessions Judge, Panaji.. ..Exercise of revisional powers is not a matter of course but it is a matter of rare and sparing use.. ..Hence, as pointed out above when two fora are available to the petitioner for getting redressal of the alleged wrong, then it will certainly be more appropriate for him to first approach the lower forum. It is certainly within the discretion of the higher forum, that is, this Court to consider whether it should entertain or not of such a revision application which can lie before the Sessions Judge.”

Though the revision can be moved directly before the High Court, the high Courts usually prefer that the Applicants move the Sessions Court in revision and then come to the High Court only if aggrieved by the order of the Sessions Court.