TMI Blog1958 (3) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... D JAFER IMAM AND SUBBA RAO K. , JJ. The Judgment of the Court was delivered by SUBBA RAO, J.- These appeals by special leave are directed against the judgment of the High Court of Judicature at Bombay made in three connected Criminal Revision applications and raise the question of the maintainability of prosecution of a person for an offence committed under section 24(1)(b) of the Bombay Sales Tax Act, 1946 (Bom. V of 1946) (hereinafter referred to as the repealed Act). The facts that give rise to the appeals may be briefly stated: The appellant, Sri Kapur Chand Pokhraj, was the proprietor of Messrs. N. Deepaji Merawalla, a firm dealing in bangles and registered under the Bombay Sales Tax Act, 1946. He did not disclose the correct turnover of his sales to the Sales Tax Department in the three quarterly returns furnished by him to the said Department on September 30, 1950, December 31, 1950, and March 31, 1951, respectively. He maintained double sets of books of accounts and knowingly furnished false returns for the said three quarters to the Sales Tax Officer and thereby committed an offence under section 24(1)(b) of the repealed Act. Under that Act, sanction of the Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Bombay praying that the sentence imposed on the appellant be enhanced on the ground that as the appellant kept double sets of accounts and intentionally furnished false information, the interest of justice required that substantive and heavy sentence should be imposed on him. Before the High Court, the appellant pleaded that by the repeal of the Sales Tax Act, 1946, the offence, if any, committed by him was effaced and that in any view the prosecution was defective inasmuch as sanction had been given by the Additional Collector and not by the Collector of Sales Tax. The contentions did not find favour with the learned Judge of the High Court. In rejecting them, the learned Judge enhanced the sentence passed upon the appellant to rigorous imprisonment for a period of one month in each of the three cases in addition to the fine already imposed by the Magistrate. He directed the substantive sentence of imprisonment in all the three cases to be concurrent. The appellant obtained special leave from this Court to prefer the above appeals against the judgment of the High Court. The learned counsel for the appellant raised before us the same contentions which his client unsuccessfully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eiture or punishment may be imposed, as if the repealing Act had not been passed." A comparative study of the aforesaid provisions indicates that while under section 7 of the Bombay General Clauses Act, there is a specific saving of any penalty, forfeiture or punishment incurred in respect of any offence committed under the enactment repealed, as distinct from civil rights and liabilities, under section 48 of Act III of 1953, there is no separate treatment of civil and criminal matters; while under the former provisions legal proceedings are saved, under the latter provisions legal proceedings pending on November 1, 1952, in respect of rights acquired or liabilities incurred under the repealed Act are saved. By such a study of the two provisions, the argument proceeds, it is clear that the enactment of a specific saving clause in the repealing Act indicates a "different intention" excluding the operation of section 7 of the General Clauses Act and the omission under section 48 of the repealing Act of a clause similar to clause (d) of section 7 of the General Clauses Act, demonstrates that the liability saved excludes criminal liability. In our view, the consideration of the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to exclude from the saving clause criminal liability incurred under the repealed Act. We, therefore, hold that the liability incurred, i.e., the offence committed under the repealed Act, is covered by the saving clause embodied in section 48 of the repealing Act. In this view it is not necessary to express our view whether, by reason of the saving clause enacted in section 48 of the repealing Act, the Legislature indicated a different intention within the meaning of section 7 of the Bombay General Clauses Act so as to exclude its operation in construing the provisions of the repealing Act. Even so, the learned counsel contended that the appellant, who committed the offence under the repealed Act, should be prosecuted only with the previous sanction of the Collector as provided by that Act, but as the sanction in the present case was given by the Additional Collector, the Magistrate had no jurisdiction to take cognizance of the offence. To appreciate this argument it would be necessary to notice the provisions relating to sanction in the repealing Act and in the Acts and Ordinances that preceded it. "BOMBAY SALES TAX ACT, 1946. "Section 24(1)(b): Whoever fails, without sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person to be a Collector of Sales Tax, and such other persons to assist him as the State Government thinks fit." BOMBAY SALES TAX ACT, 1953 (ACT III OF 1953): "Section 36: Whoever(b) fails without sufficient cause, to furnish any return or statement as required by section 13 or 18 or knowingly furnishes a false return or statementt.shall, in addition to the recovery of any tax that may be due from him, be punishable with simple imprisonment which may extend to six months or with fine not exceeding two thousand rupees or with both; and when the offence is a continuing one, with a daily fine not exceeding one hundred rupees during the period of the continuance of the offence." "Section 49(2): Any appointment, notification, notice, order, rule, regulation or form made or issued or deemed to have been made or issued under the Ordinance hereby repealed shall continue in force and be deemed to have been made or issued under the provisions of this Act, in so far as such appointment, notification, notice, order, rule, regulation or form is not inconsistent with the provision of this Act, unless it has been already, or until it is superseded by an appointment, notification, notice, order, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I of 1952 and not under the power conferred on it by the repealed Act, the sanction given by the Additional Collector to prosecute the appellant is invalid. The first answer to this contention is that, as the State Government had the power to appoint any person including an Additional Collector as Collector of Sales Tax both under the repealed Act as well as the Ordinance III of 1952, the appointment may reasonably be construed to have been made in exercise of the relevant power in respect of the offence saved under the Ordinance. The second answer is more fundamental. There is an essential distinction between an offence and the prosecution for an offence. The former forms part of the substantive law and the latter of procedural law. An offence is an aggregate of acts or omissions punishable by law while prosecution signifies the procedure for obtaining an adjudication of Court in respect of such acts or omissions. Sanction or prior approval of an authority is made a condition precedent to prosecute in regard to specified offences. Prosecution without the requisite sanction makes the entire proceeding ab initio void. It is intended to be a safe-guard against frivolous prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate in exercise of his discretion gave the sentence of fine and the High Court was not justified in enhancing the same to imprisonment without giving any reasons which compelled them to do so. Reliance was placed in this context on two decisions of this CourtDalip Singh v. State of Punjab [1954] S.C.R. 145. and Bed Raj v. State of Uttar Pradesh[1955] 2 S.C.R. 583. In the former case, the Sessions Judge convicted each of the 7 accused under section 302, Indian Penal Code, read with section 149, Indian Penal Code. As the fatal injuries could not be attributed to any one of the accused, he refrained from passing a sentence of death, but instead he convicted them to imprisonment for life. The High Court, without giving any reasons, changed their sentences from transportation to death. Bose, J., who delivered the judgment of the Court, in holding that the High Court should not have interfered with the discretion exercised by the Sessions Judge, made the following observation at page 156: "But the discretion is his and if he gives reasons on which a judicial mind could properly found, an appellate Court should not interfere. The power to enhance a sentence from transportation to death ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate making of false returns. For all the offences, the section fixes the maximum punishment of simple imprisonment which may extend to six months. The Magistrate, who tries the offenders under that section, is given a wide discretion to mould the punishment in such a way as to make it commensurate with the nature of the offence committed. Though the appellant adopted a systematic scheme to defraud the State by keeping double sets of account books and therefore deserved deterrent punishment, the learned Magistrate, presumably because the appellant pleaded guilty, without giving any reasons, gave him the lenient punishment of fine of Rs. 200. It is obvious that the sentence should depend upon the gravity of the offence committed and not upon the fact that the accused pleaded guilty or made an attempt to defend the case. In the circumstances the High Court was certainly justified in enhancing the sentence from fine to imprisonment and fine and it had given goods reasons for doing so. The High Court thought and, in our view, rightly that as the appellant had kept double sets of account books, it was eminently a case in which a substantive sentence ought to have been imposed. The Magis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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