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(1) These two petitions under section 561-A Criminal Procedure Code have been referred to the Division Bench mainly to consider the question whether the previous decision between the parties in C.W. 189-D/1965 acts as res judicata barring the petitioner from raising in these petitions those contentions which have been aiready decided against him in the writ petition.

(2) The facts are not in dispute. The petitioner Sharma in his return under the Income-Tax Act 1922 for the assessment year 1959- 60 claimed deduction for the payment of a sum of Rs. 18,000.00 allegediy made to M/s. Modem Sanitation for electrical and sanitary supervising charges during the relevant year. On enquiry, the lncome-Tax Officer was of the view that the alleged payee did not exist at ail and no such payment had been made by the petitioner. Not only the petitioner's daim to the deduction was disallowed in the assessment but two further proceedings were taken against the petitioner under the Income-Tax Act 1961, which had in the meanwhile corne into force. Firstly, a penalty was imposed on the petitioner for having made a false rctum under section 274 read with sections 271 and 273 of the Income-Tax Act 1961. Secondiy, two identical complaints were filed against the petitioner-one by the Income-Tax Officer and the other by the Commissioner of IncomeTax for having committed offences punishable under (l) section 277 of the Income-Tax Act 1961 making a false statement which the petitioner knew to be false or did not believe to be true), (2) section 193 of the Indian Penal Code (giving or fabricating false evidence in a judicial proceeding) and (3) sections 467 and 471 Indian Penal Code (forging a document and using it as genuine).

(3) In the proceedings for imposition of penalty under the IncomeTax Act 1922 the petitioner has paid the penalty but his appeal against it is said to be still pending. To checkmate the complaints filed against him, the petitioner filed writ petition No. 189-D/1965 praying that the complainants (the Income-tax Officer and the Commissioner of Income-Tax) be restrained from pursu ng the said complaints pending before a Magistrate on the grounds that section 277 of the Income-Tax Act 1961 could not apply to the alleged offence committed by the petitioner relating to the assessment year 1959-60 and the income-tax authorities could not resort to both the proceedings against the petitioner namely (l) imposition of penalty and (2) filing of complaints inasmuch as this would be in violation of Articles 14 and 20 of the Constitution. A Division Bench of this court dismissed the writ petition holding that:-(l) in view of section 297(2)(b) of the Income-tax Act 1961 the assessment of the petitioner had to be made in accordance with the procedure specified in the Income-Tax Act 1961 inasmuch as the retum for the assessment year 1959-60 had been iiled by the petitioner on 7-8-1962 i.e. after the commencement of the Income-Tax Act 1961, (2) section 277 of the Income-Tax Act 1961 was applicable to a false statement made in a retum filed on 7-8-1962 and (3) a person can be penalised under section 271 of the Income-Tax Act 1961 and can aiso be prosecuted for an offence in respect of the same facts.

(18) In Civil Writ 189-D of 1965, the following questions of law were decided against the accused between the same parties, namely:- (1) The return by the accused having been field on 7-8-1962, the offence alleged to have been committed by the accused would be covered by the Income-Tax Act, 1961 in view of section 297(2)(b) thereof. (2) The imposition of penalty on the accused could also be only under the Income-Tax Act, 1961 and not under the Income-Tax Act of 1922. (3) Section 277 of the Income-Tax Act, 1961 was applicable to the making of a false statement in a retum filed on 7-8-62. The accused could, therefore, be prosecuted under section 277. Whatever may be his objection with regard to the prosecution under section 277, no objection could be made by him to his prosecution under the provisions of the Indian Penal Code.

(21) We may now consider seriatim the objections listed above specifically raised by the petitioner accused in these petitions:- (1) & (6). While On the one hand the offence punishable under section 277 of the Income-Tax Act, 1961 was allegedly committed by the accused before the Income-Tax Officer, the prosecution against the accused for that offence could not be lodged "except at the instance of the Commissioner" in view of section 279(1) of the said Act. The complaint under section 277 filed by the Income-Tax Officer at the instance of the Commissioner of Income-Tax would, therefore, satisfy the requirements of section 279(1). The Commissioner of Income-Tax has, however, filed an identical complaint so that no doubt may be left that the complaint was filed at his own instance. Both these complaints have to be regarded as one complaint signed by both these officers in the above circumstances. No prejudice can be caused to the petitioner accused merely because instead of one complaint signed by both of them, there are two identical complaints signed by each of them. Further, the accused is being prosecuted also under sections 193, 467 and 471 Indian Penal Code. Section 195(1)(b) of the Criminal Procedure Code in respect of section 193 of the Indian Penal Code and section 195(1)(c) of the Criminal Procedure Code in respect of section 471 India Penal Code require that if any of these offences is committed in relation to any proceeding in any court, then the cognizance of these offences can be taken by a criminal court only on a complaint in writing by such a court. According to section 136 of the IncomeTax Act, 1961, any proceeding under the said Act before an Income-Tax Officer shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code. In Lalji Haridas v. State of Maharashtra, (1964) 52 Itr 423 it was held by the Supreme Court that the effect of section 37(4) of the Income-Tax Act, 1922 corresponding to section 136 of the Income-Tax Act, 1961 was that the proceeding before the Income-Tax Officer had to be treated as "proceeding in any court" within the meaning of section 195(1)(b) of the Criminal Procedure Code. The making of the complaint by the Income-Tax Officer, therefore, satisfies the requirement of section 195(1)(b) Criminal Procedure Code in respect of the complaint under section 193 Indian Penal Code. Shri Mulla argued that the Income-Tax Officer, if a court under section 195(1)(b) Criminal Procedure Code, should have followed the procedure laid down in sections 476 and 479-A Criminal Procedure Code before making the complaint against the accused. But the Supreme Court has clarified in Balwant Singh v. L. C. Bharupal, (1968) 70 Itr 89, that though an Income-Tax Officer may be a court for the purposes of section 195(l)(b) Criminal Procedure Code, he is not a "civil, revenue or a criminal court" for the purposes of sections 476 and 479-A Criminal Procedure Code. It was not necessary, therefore, for him to comply with sections 476 and 479A Criminal Procedure Code. (2) Compliance with section 173(4) Criminal Procedure Code regarding the filing of documents and giving copies of the same to the accused was not necessary inasmuch as the accused is being prosecuted on a complaint and not on a police report. (3) & (4). In respect of the offences punishable under sections 467 and 471 Indian Penal Code, the Income-Tax Officer was not a court within the meaning of section 195 Criminal Procedure Code. Shri Mulla, therefore, argued that the complainants in respect of these offences were in the position of private persons. They had to be, therefore, examined by the Magistrate under section 200 Criminal Procedure Code. They had also, therefore, to be personally present before the Magistrate. As this was not done, the complaints should have been dismissed by the Magistrate. But the proviso (aa) to section 200 exempts a public servant acting or purporting to act in the discharge of his official duties from such personal examination by the Magistrate. Section 279 of the Income-Tax Act, 1961 expressly required that the prosecution under section 277 against the accused could not be launched except at the instance of the Commissioner. It was, therefore, the duty of the Commissioner to either make the complaint himself or to authorise the Income-Tax Officer to do so. The Commissioner has done both these things. The Income-Tax Officer was bound to obey the orders of the Commissioner. Both the Commissioner and the Income-Tax Officer are, therefore, acting "in the discharge of official duties" within the meaning of the proviso (aa) to section 200 Criminal Procedure Code in respect of the complaints under section 277. Similarly, the Income-Tax Officer was a "Court" for the purposes of the offence punishable under section 193 Indian Penal Code and as held by the Supreme Court in Lalji Haridas case referred to above, the cognizance of the prosecution under section 193 Indian Penal Code could not be taken by the Magistrate except on a complaint by the court concerned. The Income-Tax Officer, was, therefore, required to make a complaint. In respect of section 193 Indian Penal Code also therefore, he was acting in the discharge of official duties. The offences alleged to have been committed under sections 467 and 471 Indian Penal Code related to the same proceeding and had, therefore, to be tried with the other two offences together. It was, therefore, a moral and a legal duty of the Income Tax authorities to include them also in the same complaints. In respect of them also, therefore, the Income-Tax Officer and the Commissioner were acting in discharge of their official duties. They were, therefore, exempted from personal examination by the Magistrate in respect of all the offences. Finally, the complainants had actually applied to the Magistrate for granting exemption from personal appearance and examination. If the Magistrate was in doubt as to whether the complainants were covered by the proviso (aa) to section 200 Criminal Procedure Code, he would have granted them exemption from personal appearance and examination. (5) Even if the offences punishable under section 277 Income-Tax Act, 1961 and section 193 Indian Penal Code may be somewhat similar, they are not identical. There is no legal bar to the prosecution of the accused for both these offences in view of section 26 of the General Clauses Act. (7) The proceedings for the imposition of penalty taken against the accused under the Income-Tax Act, 1961 are distinct from the criminal complaints filed against him. They can, therefore, continue simultaneuosly. Article 20(2) of the Constitution says that "no person shall be prosecuted and punished for the same offence more than once". The imposition of a penalty under the Income-Tax Act is neither a prosecution nor a punishment for any offence. The accused is not, therefore, exposed to any "double jeopardy".