Madhya Pradesh High Court
Nanalal Sobhagmal And Ors. vs Union Of India (Uoi) (Through The ... on 7 December, 1987
Equivalent citations: [1988]173ITR151(MP)
JUDGMENT K.L. Shrivastava, J.
1. This revision petition is directed against the order dated December 21, 1984, passed by the Additional Chief Judicial Magistrate. (Economic Offences), Indore, whereby the objections by the petitioners to their prosecution have been negatived.
2. Circumstances giving rise to the revision petition are these. The Income-tax Officer, A-Ward, Ratlam, on March 27, 1984, filed a complaint against the petitioners in respect of offences under Section 276B of the Income-tax Act, 1961 (for short " the Act "), and under Sections 420 read with Sections 511, 120B and 34 of the Indian Penal Code.
3. On the basis of the said complaint, a criminal case was registered and order for issue of process against the petitioners was passed.
4. The petitioners appeared in obedience to the process and on June 15, 1984, filed an application objecting to the complaint on the ground that the offence under Section 276B of the Act as provided by Section 279A is non-cognizable and the name of the Union of India could not be used. It was further urged that the prosecution of the petitioners is incompetent as there is no authority for the same as required under Section 279 of the Act.
5. The learned Magistrate dismissed these objections by the impugned order and hence this revision.
6. The contention of the petitioners' learned counsel is that the impugned order deserves to be interfered with.
7. The point for consideration is whether the revision petition deserves to be allowed.
8. Learned counsel for the non-applicant at the outset contended that the impugned order is interlocutory and in view of the provision embodied in Section 397(2) of the Cr. P.C., 1973, the revision petition is incompetent. It was further urged that the petitioners ought to have first approached the Sessions Judge in revision. It is lastly contended that, in substance, the complaint is by the Income-tax Officer and complete compliance with the provision of Section 279 of the Act can also be proved by evidence at the trial.
9. I shall first take up the controversy touching upon Section 279 of the Act. It may usefully be reproduced. It reads thus :
"Prosecution to be at instance of Commissioner.--(1) A person shall not be proceeded against for an offence under Section 275A, Section 276A, Section 276AA, Section 276B, Section 276C, Section 276CC, Section 276D, Section 276DD, Section 276E, Section 277, Section 278 or Section 278A except at the instance of the Commissioner."
10. In the decision in Baliah's case [1969] 72 ITR 787 (SC), the expression "at his instance" occurring in Section 53 of the Indian Income-tax Act, 1922, has been interpreted. Therein, it has been held that it is not necessary that the complaint petition itself must be filed by the Inspecting Assistant Commissioner and the complaint by the Income-tax Officer, on being authorised by the Inspecting Assistant Commissioner, is not illegal.
11. In certain cases, the law provides that sanction, permission or authority shall constitute a precondition for prosecution. There is difference between authority and direction. When a person is authorised to do it, he has the permission to do it. When a person is directed to do a particular act, there is no question of permission and he is commanded to do it.
12. The relevant portion of the order dated March 20, 1984, passed by the Commissioner of Income-tax, Bhopal, in respect of the offence under Section 276B of the Act is in these words :
"In exercise of the power conferred on me by Section 279 of the Income-tax Act, I, A.N. Gupta, Commissioner of Income-tax, Bhopal, M.P., hereby direct B.L. Bhandari, aged 48 years, Income-tax Officer, "A" Ward, Ratlam, to file a complaint at my instance against the said persons for the offence stated hereinabove in the court of competent jurisdiction."
13. Going by the substance rather than the form, it has to be held that the complaint is at the instance of the Commissioner of Income-tax.
14. Further, in the instant case, it is not that there is absolute want of authority to file the complaint. As pointed out in the decision in Dhian Singh v. Municipal Board, Saharanpur, AIR 1970 SC 318, where sanction of authority for initiation of prosecution is required, it may not always be necessary for the authority concerned to apply its mind and find out whether there was any justification for instituting the prosecution. The following excerpt from paragraph 5 (at p. 321) of the decision may usefully be reproduced :
"The provisions under which sanction was sought in those cases required the sanctioning authority to apply its mind and find out whether there was any justification for instituting the prosecutions. The Judicial Committee as well as this court has laid down that in such cases, the court must be satisfied either from the order of sanction or from the other evidence that all the relevant facts had been placed before the sanctioning authority and that authority had granted the sanction after applying its mind to those facts. The ratio of those decisions has no bearing on the facts of this case. Under Section 20 of the Prevention of Food Adulteration Act, 1954, no question of applying one's mind to the facts of the case before the institution of the complaint arises as the authority to be conferred under the provision can be conferred long before a particular offence has taken place. It is a conferment of an authority to institute a particular case or even a class of cases. That section merely prescribes that persons or authorities designated in that section are alone competent to file complaints under the statute in question."
15. As also pointed out in the decision in Mohd. Iqbal Ahmed v. State of A.P., AIR 1979 SC 677, even where the requirement of law is that application of mind before authorising or sanctioning prosecution is necessary, the prosecution is at liberty to lead evidence at the trial in order to prove that the sanction for the prosecution is a valid one. In the instant case, the prosecution is certainly at liberty to lead evidence during the trial, if considered necessary, to prove that the authority under Section 279 of the Act for the prosecution in question is a valid one. The other contentions are without merit and are repelled.
16. The person authorised to file the complaint is the Income-tax Officer and in the instant case, the complaint, in substance, is by him. The fact that the Union of India is shown in the title does not alter its real character and is an irregularity which is inconsequential. In this connection, the decision in Dhian Singh v. Municipal Board, AIR 1970 SC 318, may usefully be perused.
17. In the result, the revision petition, being without merit, is dismissed.