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2022 (9) TMI 112 - HC - Income TaxOffence punishable u/s 276CC - Non filing of return - Maintainability of criminal appeals against Magistrate orders - Stoppage of proceedings - appeals are filed by the Income Tax Department u/s 378 of the Code of Criminal Procedure, 1973 instead of invoking revision provisions of Section 397 of Cr.P.C. - HELD THAT:- On a bare reading of the provision of Section 258 of Cr.P.C., it is clearly held in the last line that ‘stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge”. The very provision of Section 258 of Cr.P.C. defines, any stoppage of the proceedings is made after evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal. Therefore, once a case ended in acquittal then the aggrieved complainant has to file an appeal under Section 378 of Cr.P.C. but not a revision, as evidence of some of the witness was already recorded, therefore, it cannot be said as ‘discharge’. The definition of Section 258 of Cr.P.C. reads “in any other case, release the accused and such release shall have the effect of discharge”. That means, without recording evidence of the parties, if the proceedings were closed by way of stopping the proceedings, then it amounts to discharge and such order shall have to be challenged only under Section 397 of Cr.P.C. before the learned Sessions Judge or before the High Court. Thus the orders under challenge passed by the Magistrate, stopping proceedings and releasing the accused, is nothing but an order of discharge, which is challengeable under the revisional provisions of Section 397(1) of Cr.P.C. As per Section 372 of Cr.P.C., no appeal lies unless and otherwise provided by the Code of Criminal Procedure. Such being the case, the appellant-Income Tax Authority cannot invoke the provisions of either Section 372 or Section 378 of Cr.P.C. Hence, in the present case on hand, the appellant has to challenge under the revisional provisions of Section 397 of Cr.P.C. Appellant wants to file a memo for converting the criminal appeals into criminal revision petitions, but the same is objected by the respondents’ counsel stating that the respondents will lose one more opportunity of challenging the order before the High Court if the revision petition filed before the High Court. The objection of the respondents is sustainable under law. The question of giving permission to the appellant for converting the criminal appeals into criminal revision petition cannot be granted here, as the respondents will lose an opportunity of appeal to the High Court either under Section 482 or Section 397 of Cr.P.C. Therefore, I hold that these criminal appeals are not maintainable and liable to be dismissed and liberty can be granted to the appellant to file an application for condonation of delay, for having spent time in wrong forum, while filing revision petition before the learned Sessions Judge. Accordingly, all the criminal appeals are dismissed as not maintainable. However, liberty is granted to the appellant to file a revision petition under Section 397 of Cr.P.C. before the learned Sessions Judge with liberty to file necessary application for condonation of delay under Section 14 of the Limitation Act for spending time before this Court.
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