TMI Blog1977 (3) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... howing an income of Rs. 96,001.28 as income from other sources. Against the column " salaries and house property " in the return the petitioner had shown his income to be " nil ". This statement made by the petitioner against the column " salaries and house property " was false, because he had not shown his income from his house property at 3, Aurangjeb Road, New Delhi, and had not mentioned his income as M.L.A. for the period commencing from October 2, 1963, to March 31, 1965, which was Rs. 1,420. This return filed by the petitioner having been signed and verified by him, an offence under s. 277 of the I.T. Act was alleged to have been committed. On the aforesaid allegations the petitioner was summoned to stand his trial (vide 2CC-203 of 1974) before the aforesaid Magistrate. The defence of the petitioner during trial was that the omission to mention his income from house property and salary as M.L.A. for the period between October 2, 1963, and March 31, 1965, amounting to Rs. 1,420 was an inadvertent mistake; that, on March 27, 1967, when the assessment order was passed, the assessing authority was informed of that omission by Ex. A-I and that the assessment order was passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner to complain that evidence before charge was closed by the learned Magistrate despite a request made by the petitioner to summon his witnesses through the court. So, in that view of the matter, it must be held that there is hardly any ground for the petitioner to entertain a reasonable apprehension that he would not get fair trial and justice. " After disposal of the miscellaneous case in the above manner the original records of the complaint case was received by the trying court whereafter the case stood posted to September 17, 1975. On that date, the prosecution did not choose to move the court once again for summoning any witness to be examined before a consideration of the charge. The case, however, was not taken up on that day. The trying Magistrate having been transferred, the S.D.J.M. withdrew the case to his file and again transferred the case to Shri B. Sahu, Magistrate, 1st Class, for trial. Shri B. Sahu took up the case on September 24, 1975, to which date the case had been posted earlier. On that date four applications one after another were filed by the prosecution within a period of half an hour. The first one of those applications was for calling for the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom time to time. When the prosecution got enough opportunities to examine witnesses and to take steps to secure their attendance which were not availed of and there is no provision to allow time to the prosecution to obtain stay order, allowing of further time to the prosecution to go on revision and obtain stay order was not considered expedient in the interest of justice and as such the prayer of the advocate for the prosecution was rejected and the learned advocate for the prosecution was again requested to argue his case so that on merits I would consider if allowing of further time is essential. But the learned advocate for the prosecution again refused to argue his case ...... .." After rejection of the third application the fourth application that was filed by the prosecution was for time for two weeks to file a petition under s. 526, Cr. PC (old) for a transfer of the case to another court and to obtain a stay order. That application was rejected by the trial court on the ground that the old Code did not apply to such a petition and that the new Code did not contain a provision for staying further proceedings in case as soon as a party to the proceeding expresses its in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution filed a revision application on September 26, 1975, before the Session judge, Cuttack. That revision application was allowed by the learned Additional Sessions Judge which is now under challenge in the present revision. As appears from the impugned order three points were urged by the prosecution before the Additional Sessions judge in support of the revision petition. They were: (a) that the order of discharge passed by the trial court on September 25, 1975, was a nullity inasmuch as, it was mandatory on the part of the trial court to stay further proceedings before it as soon as intimation was given to it by the Prosecution that it intended to move for a transfer of the case; (b) that the learned Magistrate had no power to discharge the accused without examining all the witnesses mentioned in the complaint petition and for that purpose the learned trying Magistrate should have summoned the witnesses through court instead of asking the prosecution to produce it s witnesses; and (c) that the evidence on record was sufficient to frame a charge against the accused. The learned Additional Sessions judge, on the first point as to whether the trial court was bound to stay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted the I.T.O., to include his salary drawn by him as an M.L.A. But this offence being related to the verification made in the income return submitted to the I.T.O., the subsequent conduct can be only considered after the accused appears and gives his statement and will not be taken into account while framing a charge." The impugned order goes to show that the learned Additional Sessions judge has decided the case mainly on two points. According to him, the application filed by the prosecution on September 27, 1975, in the trial court for adjourning the proceeding in order to enable it to move the Sessions judge for transferring the case from the file of Shri B., Sahu is governed by the old Cr. PC, and, therefore, it was incumbent on the trying court to adjourn the hearing of the case under s. 526(8), Cr. PC (old). The learned trying Magistrate, therefore, was wrong in disposing of that application under the new Code and in not granting time to the prosecution to move for transfer. Hence the subsequent order passed by the trying court discharging the accused being without jurisdiction was a nullity. The second reason which actuated the learned Additional Sessions judge to set a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout jurisdiction and hence a nullity. The right of a party to move the Sessions Court to get a case transferred from one court to another is not a vested right, and, therefore, it cannot be said that in the present case the complaint having been filed and cognizance of the alleged offence having been taken under the old Code, a vested right to move for transfer of the case from one court to another accrued to the prosecution under the old Code. True, if an application for time by party to enable it to move for transfer of the case from one court to another would have been pending under the old Code, certainly under s. 484(2)(a) of the new Code the said application had to be disposed of as if the new Code had not come into force. In such an event, it could be said that it was mandatory on the part of the court before which application was pending to grant time as prayed for in the application and that the order of the court disposing of the case on merit after dismissing the application for time was without jurisdiction. But in the case before me no such application was pending before the trial court when the new Code came into force. The application for time was filed by the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of dismissal of that petition cannot be said to be without jurisdiction. When the word " application " appears in s. 484(2)(a) of the new Cr. PC along with the words " trial " and " enquiry ", it means an application which is not part of the trial or enquiry. The word " application " in the section has an independent existence different from " trial " or " enquiry Where an application is to be deemed as part of the enquiry or trial and when a separate provision has been made in the Cr. PC (old) for disposal of such application under, the chapters relating to trial or enquiry, such application has to be disposed of under the old Code and not otherwise. The observation in the decision in Kanika Bewa v. State, XLI [1975] CLT 798 at p. 804 (Orissa) to the effect that." this indicates the clear legislative intention that all other proceedings shall be dealt with and disposed of in accordance with the provisions of the old Code " can be of no assistance to the prosecution. The words " all other proceedings " used in the aforesaid passage must have to be understood in its context. The main provision of s. 484(2)(a) under the new Cr. PC is that notwithstanding the repeal of the old Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D.J.M. for transfer of the case on the ground that despite petition by the prosecution praying to summon other witnesses through court the trial court closed the prosecution before charge and did not summon the witnesses as required by the prosecution" That application for transfer was rejected by the learned S.D.J.M. on the finding that the prosecution did not press its Application for time to summon other witnesses before the trial court which, therefore, did not allow the same. This finding was not challenged by the prosecution. There after, even though several dates passed, to which the case was posted, no further application was made by the prosecution till September 24, 1975 when the case was taken up. The first act, done by the prosecution on that date was to file an application for the original sale deed. When the defence agreed to accept the copy of the sale deed already filed by the prosecution as evidence, and on this concession the copy-of the sale deed was accepted, the trial court rejected the petition of the prosecution. Then a second petition was filed by the prosecution for time to summon more witnesses. In view of the fact that on August 12, 1975, the prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by 5.00 p.m. the trial court posted the hearing of the case to September 2.5, 1975, and in the order of postponement clearly mentioned that the prosecution counsel could come in the first hour on September 25, 1975, and argue the case. When this opportunity was not availed of by the prosecution, the trial court had no other alternative but to finally dispose of the-matter and pass the order discharging the accused. This being the state of things, it is futile to contend that the trial court erred in law or exercised its discretion capriciously in not allowing the petition for time filed by the prosecution to enable it to move the Sessions judge for transfer of the case. For the reasons stated above, the conclusion of the learned Additional Sessions Judge, that the order of discharge is without jurisdiction, cannot be sustained in law. I shall now come to the next conclusion of the court below, viz., that at the time of consideration of the charge the trial court should not have taken into account the subsequent conduct of the accused and that it should have excluded from its consideration Ex. A-1. According to the court below, there were enough materials for framing a charge. La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than six months. Thus, it is very clear that the mere making of a statement in the return which is false does not ipso facto constitute an offence under the above section. Falsity of the statement is only one of the ingredients. The other main ingredient is that the false statement must be made knowing it to be false or believing it to be false or under the belief that it is not true. It follows, therefore, that the prosecution in order to make out an offence under the above section must prove both the ingredients . In other words, it must show that the statement made by the accused was false and that while making the statement the accused knew it to be false or believed it to be false or believed that it was not true. In the present case, the return for the assessment year 1964-65, filed by the petitioner on January 10, 1965, shows that there was an omission of his income from house property and of the income from the salary as an M.L.A. for some months amounting to Rs. 1,420. The petitioner had returned an income of Rs. 96,001.28 in the statement submitted by h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission regarding salary in the return was due to inadvertence, he replied that it was a question of opinion. Another circumstance which must go in favour of the petitioner and which has weighed with the trial court is that the relief in respect of the omitted salary in the original return is so negligibly small that it cannot be thought for a while that an assessee like the petitioner returning an annual income of Rs. 96,001.28 would resort to such deliberate omission which would, not bring him practically any relief at all. The trial court, therefore, is fight in coming to the conclusion that the omission regarding the income from salary is not intentional but is the result of a bonafide mistake. Regarding the omission of income from house property, it may be mentioned that the petitioner had specifically mentioned in his return that he had a house at 3, Aurangzeb Road, New Delhi. The only omission was that the petitioner had not disclosed in his return the income from that house under a bona fide belief that the said house did not yield any income as per the provisions of law. The prosecution has led no evidence that that house yielded an income to the petitioner during the acco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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