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TMI Blog1975 (9) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... vent of the new Criminal Procedure Code a clear line is drawn between the powers exercisable by an Executive Magistrate and Judicial Magistrate. Only Judicial Magistrates have got the power to impose a fine on the citizens. Therefore, for this reason the proceedings initiated against the petitioners for recovery of tax is vitiated. It is urged that the "Magistrate" referred to in section 23(2)(b) of the Act can only mean a Judicial Magistrate in the light of section 3, clause (4), of the Criminal Procedure Code, 1973. Section 3(4) reads: "Where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters- (a) which involve the appreciation or sifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any court, they shall subject to the provisions of this Code, be exercisable by a Judicial Magistrate; or (b) which are administrative or executive in nature such as the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late to matters which involve the appreciation or sifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, such functions should be exercised only by a Judicial Magistrate. It was pointed out that the question of appreciation or sifting of evidence or formulation of any decision may become necessary in particular cases for recovery of tax, for example, if there is a dispute regarding the payment of the whole or any portion of the tax. On the other hand, it is strongly urged by the learned Government Pleader that by giving emphasis on the particular provision of the new Code of Criminal Procedure itself it would be clear that recovery can be made by application to any Magistrate, whether he is Judicial Magistrate or Executive Magistrate. He placed reliance on the decision of the Supreme Court in Dargah Committee, Ajmer v. State of Rajasthan A.I.R. 1962 S.C. 574; [1962] 2 S.C.R. 265. There considering the recovery procedure prescribed by section 234 of the Ajmer-Merwara Municipalities Regulation, 1925, Gajendragadkar, J., as he then was, speaking for the court, said: "Now looking at s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings 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. An order passed in the exercise of that power conferred under the Act cannot be said to be an order passed by an inferior criminal court under the Criminal Procedure Code. When no provision has been made in the Act for revision of such an order, sections 435, 436, 438 and 439 of the Criminal Procedure Code cannot be resorted to for interfering with that order." After observing thus the learned Judges referred to the decision of the Supreme Court in Dargah Committee v. State of Rajasthan[1962] 2 S.C.R. 265; A.I.R. 1962 S.C. 574. and after quoting the statements which I have myself extracted earlier it was said that the above statement of the Supreme Court would be equally applicable to a Magistrate functioning under section 13(3)(b) of the Act; he cannot be regarded either as an inferior criminal court or as functioning or exercising authority under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by way of penalty. The legislative sanction for the recovery of such amount as if it were a fine cannot have the effect of placing it in the category of fine imposed as a penal liability. The expression 'as if it were a fine' necessarily means that it is not a fine, as understood in law. In respect of the amount specified in the Magistrate's order as recoverable from the defaulter under the provisions of the General Sales Tax Act, the direction in section 19 goes only to the extent of adopting the procedure prescribed by the Code of Criminal Procedure for the recovery of a fine." In the same case (Muhammad v. Collector of Palghat[1967] 19 S.T.C. 475., Joseph, J. (Thomas v. State[1959] 10 S.T.C. 417; 1959 K.L.T. 698., had also observed that "the fact that it is made recoverable as fine shows that the court is not really imposing a sentence of fine when it specifies the amount of tax which the person convicted has failed to pay. Section 19 thus only enables the court to set in motion the machinery for realisation of fines for collecting the arrears of tax by specifying the amount." Following these observations, this court said in Muhammed v. Collector of Palghat[1967] 19 S.T.C. 475. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax assessed, the Magistrate will have to consider that, being a jurisdictional factor in the matter of recovery. Such consideration will arise in many an administrative or ministerial function. In England: "Although the issue of a warrant for non-payment of rates is usually said to be a ministerial act, the justices must first be satisfied that the rate was properly made, published and demanded, that it has not been paid, and that the person on whom it was made was in truth the person rateable; but once satisfied on these points they have no discretion to extend the time for payment. The issue of a warrant for the non-payment of taxes has been held to be a ministerial act (and therefore not reviewable by certiorari) although the officer issuing the warrant had discretionary power to take proceedings in the courts for the recovery of the taxes. Again, where an authority has erroneously declined jurisdiction over a matter or has failed to exercise a discretion according to proper legal principles, the issue of a mandamus, to it has sometimes been represented as a remedy for breach of a ministerial duty, although the determination of such questions may be far from a mechanical opera ..... X X X X Extracts X X X X X X X X Extracts X X X X
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