TMI Blog1985 (4) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... )(i) of the Bombay Sales Tax Act, 1959, as amended by the Maharashtra Sales Tax (Amendment) Act, 1981. It appears to be an admitted position that a show cause notice dated 6th May, 1982, was issued to the petitioner calling upon him to show cause as to why a penalty should not be imposed under section 36 of the said Act. Prior to this a complaint was made to the police on 23rd April, 1982, about the offences committed by the petitioner. 3.. According to Mr. Kothari, the learned counsel appearing for the petitioner, in substance, the criminal prosecution was launched against the petitioner when the offences complained against him were explained to him on 26th April, 1983. Prior to this, though criminal proceedings were started, in law no c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he is given an opportunity to defend himself. In these circumstances, it is not necessary that before according sanction the sanctioning authority should hear the accused or the person against whom prosecution is to be launched. In support of this contention he has placed strong reliance upon the decision of this Court in Parasnath Pande v. The State AIR 1962 Bom 205. He then contended that the present prosecution is not barred by section 63(14) of the Bombay Sales Tax Act, 1959, as admittedly in the present case no penalty has been imposed upon the petitioner, either before the prosecution was launched or even thereafter. He also made a statement on behalf of the department that the department is not interested in proceeding further with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he penalty proceedings. Therefore, in these circumstances, it can safely be said that the bar contemplated by sub-section (14) of section 63 is not attracted in the present case. Therefore, it is not necessary to deal with the contention raised by Mr. Kothari based on section 300 of the Code of Criminal Procedure or article 20 of the Constitution of India, since the said provisions are not relevant to the controversy raised before us. 6.. So far as the second contention raised by Mr. Kothari is concerned, namely, that it was obligatory on the part of the Deputy Commissioner of Sales Tax to give an opportunity of being heard to the petitioner before the sanction was accorded, in our view, there is no substance in the said contention also. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter for the Government to consider. The absolute power to accord or withhold sanction conferred on the Government is irrelevant and foreign to the duty cast on the court, which is the ascertainment of the true nature of the act." This clearly shows that the said function is neither judicial nor quasijudicial. Similar view is taken by this Court in Parasnath v. State AIR 1962 Bom 205, wherein it was held that "grant of sanction is not a judicial act". The Division Bench also quoted, with approval, the observation of the Madras High Court in Kalagava Bapiah's case (1904) ILR 27 Mad 54. The Madras High Court has also held in the said decision that the sanction accorded by the Government under section 197 of the Code of Criminal Procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e officer has explained as to why having regard to the facts and circumstances of those cases, the Commissioner thought it fit to issue show cause notices. According to the respondents, the said show cause notices were issued for different purposes and not under section 67 of the Bombay Sales Tax Act, 1959, nor for considering the question of granting sanction for prosecution. They were issued by virtue of the powers vested in the Commissioner under section 69 of the said Act, which are discretionary. It is further contended by the department that the case of the petitioner is not similar or identical to those cases. The department decided to launch prosecution against the petitioner, since there are serious allegations against him, and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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