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TMI Blog1970 (12) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... 34 of 1970 and 71 of 1970 before the First Class Judicial Magistrate, Badami (respondent 2) under section 13(3)(b) of the Act, for the recovery of the tax due and other miscellaneous amounts payable under the Act. Respondent 2 issued warrants for attachment of the properties of the petitioner to recover the arrears of tax claimed as if it were a fine imposed by him. The petitioner has challenged the recovery proceedings in these writ petitions. 2. The main contention of Sri K. Srinivasan, counsel for the petitioner, is that the Magistrate has no jurisdiction to issue a warrant under section 386 of the Code of Criminal Procedure and in any event, he cannot recover more than Rs. 2,000 as prescribed under section 32 of the Code of Criminal P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property, or both, of the defaulter: Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no court shall issue such warrant unless for special reasons to be recorded in writing it considers necessary to do so. (2) The State Government may make rules regulating the manner in which warrants under sub-section (1), clause (a), are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (3) Where the Court issues a warrant to the Collector under sub-section (1), clause (b), such warrant shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs before him, has observed thus: "The power of the Magistrate to take proceedings for recovery of any tax assessed or any other amount due under the Act from a dealer, as if it were a fine imposed by him, accrues to the Magistrate by virtue of section 13(3)(b) of the Act and not under any provisions of the Code of Criminal Procedure. Such proceedings are mere recovery proceedings and the Magistrate does not function or exercise his authority under the Code of Criminal Procedure. Though the procedure for the recovery of such amount may be the same as for the recovery of any fine imposed by him, he is competent to recover the amount of tax, only because he is designated under the Act to recover the same." In view of the above decision, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the provisions of section 32 of the Code of Criminal Procedure are not directly attracted. Let us see whether his powers are limited by any other provisions. 8.. The learned Government Pleader argues that the Magistrate recovers the tax because he is authorised under section 13(3)(b) of the Act. That section authorises him to recover any amount as if it were a fine imposed by him. His powers, according to him, are not limited by any provisions of the Code of Criminal Procedure. He also draws support from the provisions of section 13(3)(a) of the Act, which provides for the unlimited recovery of tax as if it were an arrear of land revenue. It is difficult to accept this contention. Under the Land Revenue Act, there is no provision limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein. The power to recover the fine is, therefore, circumscribed by the limits of the power to impose a fine. 10.. We, therefore, hold that by resorting to the procedure under section 386 of the Code of Criminal Procedure, a Magistrate designated under section 13(3)(b) of the Act, in the absence of any other provision, cannot recover any amount as if it were a fine, in excess of the limits prescribed under section 32 of the Code of Criminal Procedure. The warrants issued by the second respondent for the recovery of the amounts in the instant cases being in excess of his powers, must be held to be without jurisdiction. 11.. For the reasons stated above, these petitions are allowed. The recovery warrants issued by the second respondent are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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