9911796707
TMI Blog1964 (2) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinary business activities. In the income-tax assessment proceedings of the appellant for the assessment years 1949-50 and 1950-51, respondent No. 2 gave evidence on oath before the Income-tax Officer, Ward A, Jamnagar, on December 4, 1958. In his evidence he denied that he had a son named Nihal Chand and that he had done any business in the name of M/s. Nihal Chand and Co. at Jamnagar. According to the appellant, the said statements were false to the knowledge of respondent No. 2 and were made by him to mislead the Income-tax Officer and to avoid the incidence of income-tax on himself. As a result of the said false statements, the appellant was heavily taxed. On November 24, 1959, the appellant filed a criminal complaint against respondent No. 2 under section 193 of the Indian Penal Code (No. 452/S of 1959) in the Court of the Presidency Magistrate, 19th Court, Esplanade, Bombay. At the hearing of the said complaint, respondent No. 2 raised a preliminary objection that the learned Magistrate could not take cognizance of the said complaint, because the proceedings in which he was alleged to have made a false statement on oath were proceedings before a court within the meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37(2) confers upon the Income-tax Officer certain additional powers which can be exercised subject to any rules made in that behalf, provided the said officer is specially authorised by the Commissioner in that behalf, and in exercising these powers, the provisions of the Code of Criminal Procedure, 1898, relating to searches apply. Section 37(3) deals with the question of impounding and retaining any books of account or other documents. That takes us to section 37(4) which is relevant for our purpose ; this section provides that any proceeding before any authority referred to in this section shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code. It is thus clear that while the Income-tax Officer exercises his powers under section 37(1), (2) and (3) the proceedings held by him are judicial proceedings for the purposes of the three sections of the Indian Penal Code mentioned in sub-section (4). Therefore, the question as to whether the false statement alleged to have been made by respondent No. 2 was made by him at any stage of a judicial proceeding within the meaning of section 193 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the said section, a judicial proceeding for the purposes of section 193 of the Indian Penal Code and that means that if an offence of giving false evidence is proved to have been committed by a person in a proceeding before the Income-tax Officer, he would be liable for the higher sentence awardable under the first part of section 193. That takes us to section I95 of the Code of Criminal Procedure. It is well-known that section 195 provides for an exception to the ordinary rule that any person, can make a complaint in respect of the commission of an offence triable under the Code of Criminal Procedure. Section 4(h) of this Code defines a " complaint " as meaning the allegation made orally or in writing to a magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include the report of a police officer. This definition shows that any person can make a complaint in respect of the commission of an offence. Section 190 requires that the magistrate to whom a complaint has been made should take cognizance of the said complaint, subject to the provisions of the said section. Thus, the general ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeding and those committed in proceedings other than judicial proceeding, whereas section 195(1)(b) of the Code of Criminal Procedure does not refer to judicial proceedings as such, but mentions proceedings in any court. That is why the controversy between the parties in the present appeal lies within a very narrow compass. Can it be said that the proceeding which is a judicial proceeding under section 193 of the Indian Penal Code must be held to be a proceeding in any court under section 195(1)(b) of the Criminal Procedure Code. It is on this aspect of the dispute that the arguments on both sides are fairly balanced. In dealing with this question, it is unnecessary to consider what would have been the position of the Income-tax Officer acting under section 37(1), (2) and (3), and what would have been the character of the proceedings taken before him if sub-section (4) had not been enacted. In Jagannath Prasad v. State of Uttar Pradesh it has been held by this court that the Sales-tax Officer functioning under the U.P. Sales Tax Act, 1948 (15 of 1948), was not a court within the meaning of section 195 of the Code of Criminal Procedure and so, it was not necessary for him to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 1929, it further lays down that the Commissioner shall be deemed to be a civil court for all the purposes of section 195 and Chapter 35 of the Code of Criminal Procedure. The argument is that where the legislature wanted to extend the provisions of section 195 of the Code of Criminal Procedure, to the proceedings before the Commissioner held under the Workmen's Compensation Act, it thought it necessary to make a specific and express provision in that behalf. A similar provision is contained in section 18 of the Payment of Wages Act, 1936 (4 of 1936). In the Industrial Disputes Act, I947 (14 of 1947), the position is similar to that in the case of the Workmen's Compensation Act ; section 11(4) confers on the authorities therein specified powers as are vested in a civil court in respect of the matter mentioned therein. In 1950, sub-section (8) was added to section 11 by which it was provided that every Labour Court, Tribunal or National Tribunal shall be deemed to be a civil court for the purposes of sections 480 and 482 of the Code of Criminal Procedure. This scheme also shows, says the Additional Solicitor-General, that where the legislature wants to make any Tribunal or author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court " as including all judges and magistrates and all persons except the arbitrators legally authorised to take evidence. Prima facie, there is some force in the contention that it would not be reasonable to predicate about every judicial proceeding that it is a proceeding before a court, and so, it is open to the appellant to urge that though the proceeding before an Income-tax Officer may be a judicial proceeding under section 193 of the Indian Penal Code, it would not follow that the said judicial proceeding is a proceeding in a court as required by section 195(1)(b) of the Code of Criminal Procedure. It is somewhat remarkable that though section 193 of the Indian Penal Code refers to a judicial proceeding, section 195 of the Code of Criminal Procedure refers to a proceeding in any court ; it does not say a judicial proceeding in any court. Mr. Desai contends that reading section 193 of the Indian Penal Code and section 195(1)(b) of the Criminal Procedure Code together, it would not be unreasonable to hold that proceedings which are judicial under the former, should be taken to be proceedings in any court under the latter. The whole basis of providing for a higher sentence i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode if it was committed in proceedings before the Income-tax Officer. It is plain that if the argument of the Additional Solicitor-General is accepted, the result would be that a complaint like the present can be made by any person and if the offence alleged is proved, the accused would be liable to receive higher penalty awardable under the first paragraph of section 193 of the Indian Penal Code without the safeguard correspondingly provided by section 195(1)(b) of the Code of Criminal Procedure. Could it have been the intention of the legislature in making the offence committed during the course of a proceeding before an Income-tax Officer more serious without affording a corresponding safeguard in respect of the complaints which can be made in that behalf ? We are inclined to hold that the answer to this question must be in the negative. That is why after careful consideration, we have come to the conclusion that the view taken by the Bombay High Court should be upheld though for different reasons. Section 37(4) of the Act makes the proceedings before the Income-tax Officer judicial proceedings under section 193 of the Indian Penal Code and these judicial proceedings must be tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Solicitor-General is accepted, is, in our opinion, so glaring that the alternative contention urged by Mr. Desai and upheld by the Bombay High Court which avoids the said anomaly appears to be more reasonable and more consistent with the true intention of the legislature. That is why we are not prepared to accept the appellant's argument that the Bombay High Court was in error in dismissing his complaint on the ground that the condition precedent prescribed by section 195(1)(b) of the Code of Criminal Procedure had not been complied with as no complaint had been filed by the Income-tax Officer. It appears that in In re Punamchand Maneklal the Full Bench of the Bombay High Court had taken the view that an Income-tax Collector is a revenue court within the meaning of that term as used in clauses (b) and (c) of section 195 of the Code of Criminal Procedure, 1998. Scott C.J., who spoke for the Full Bench, observed that it could not be contended that the Income-tax Collector was a civil or criminal court, and so, he addressed himself to the narrow question as to whether he was a revenue court. Dealing with the question on that footing, he examined the functions of the Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings under section 23 of the Income-tax Act, 1922, is a revenue court within the meaning of clause (b) in sub-section (1) of section 195 of the Code of Criminal Procedure. The correctness of the High Court's view is challenged before us by the complainant on the strength of a certificate granted by the High Court under article 134(1)(c) of the Constitution. Section 195(1)(b) is one of the group of sections in the Code of Criminal Procedure which have laid down exceptions to the general rule of criminal law that criminal proceedings can be instituted in a court by any person. To this rule section 3195 along with sections 106, 196A, 197, 197A, 108, 198A and 199 provide exceptions. Section 195 mentions in its first sub-section a number of offences of which no court shall take cognizance except on the complaint in writing of the persons as indicated. Three classes of offences are dealt with in three clauses (a), (b) and (c) of this sub-section. Section 195(1)(a) deals with offences punishable under sections 172 to 188 of the Indian Penal Code and provides that no court shall take cognizance of any of these except on the complaint in writing " of the public servant concerned or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Commissioner of Income-tax within whose jurisdiction they perform their functions. Under section 5(8) they have to observe and follow the orders, instructions and directions of the Central Board of Revenue. Chapter III of the Act in its several sections states what heads of income, profits and gains shall be chargeable to income-tax and indicates the duties which the Income-tax Officer has to perform for the purpose of his main function of assessing the chargeable income. For instance, deduction under section 7(2)(ii)(a) in respect of conveyance owned by the aspessee or used by him for the purpose of his employment " shall be such sum as the Income-tax Officer may estimate ........ " The allowances permissible under section 10(1)(1) " shall be such sum as the Income-tax Officer may determine " ; the allowances under section 10(2)(ix) also shall be such sum in respect of loans made in the ordinary course of business as the Income-tax Officer may estimate to be irrecoverable. Again, the allowances mentioned in clause (a) and clause (b) of section 10(4A) cannot be made " if in the opinion of the Income-tax Officer any such allowance is excessive or unreasonable." The proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns given above it is clear that he is a part and parcel of the executive organ of the State. The fact that for carrying out some of these executive functions he will have the powers as are vested in a court under the Code of Civil Procedure has not the effect of converting him into a limb of the judicial organ. It has been held that he is a quasi-judicial authority. That is not sufficient however to make him a court. Before we can call him a court, he must be shown to be a part of the judicial organ of the State. Leaving out for later consideration the effect of section 37(4) it is clear that an Income-tax Officer is not a court. We have not thought it necessary to refer to the numerous decisions of the High Courts in India, of this court or of the Privy Council in which the question of what is a court has been considered. We have considered this unnecessary in view especially of the fact that most of these were noticed in a recent decision of this court in Jagannath Prasad v. State of Uttar Pradesh, where the question whether a Sales Tax Officer was a court or not within the meaning of section 195(2) of the Criminal Procedure Code was considered. This court held that the Sales T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed by Mr. Desai who appeared before us for the respondent that looking at the functions of an Income-tax Officer it is not possible to say that the Income-tax Officer is a court specially after this court's decision in Jagannath Prasad's case mentioned above. His main contention is that even though the Income-tax Officer was not originally a court within the meaning of section 195 of the Code of Criminal Procedure, the deeming provision in section 37(4) has made him a court. Section 37(4) runs thus : " 37. (4) Any proceeding before any authority referred to in this section shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code (45 of 1860). " The authorities mentioned in the section are the Income-tax Officer, the Appellate Assistant Commissioner, the Commissioner and the Appellate Tribunal. The direct effect of sub-section (4) of section 37 therefore is that proceedings before an Income-tax Officer "shall be deemed to be a judicial proceeding " within the meaning of section I93 and section 228 and for the purposes of section 196 of the Indian Penal Code. As we read the section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " and the Custodian shall be deemed to be a court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898 ". Another instance of similar legislation is to be found in section 17 of the Evacuee Interest (Separation) Act, 1951, which after stating that any proceeding before the competent officer or the appellate officer shall be judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code adds " and the competent officer or the appellate officer shall be deemed to be a civil court within the meaning of section 480 and section 482 of the Code of Criminal Procedure, 1898 ". The Displaced Persons' (Compensation and Rehabilitation) Act, 1954, uses exactly similar words in section 26. That section first confers on every officer appointed under the Act the same powers in respect of certain specified matters for the purpose of making any enquiry or hearing any appeal under the Act as are vested in a civil court under the Code of Civil Procedure and then proceeds thus " any proceeding before any such officer shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be no conceivable reason for the failure to follow that pattern. In our opinion, ,there is considerable force in this argument. On behalf of the accused-respondent Mr. Desai suggests that the words actually used, viz., " that proceeding before the authority shall be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code " were by themselves sufficient to give effect to an intention that that authority shall also be deemed to be a court within the meaning of section 195 of the Code of Criminal Procedure. According to the learned counsel, a judicial proceeding within the meaning of section 193 of the Indian Penal Code can only be before a court. For this proposition we can find no support either in principle or authority. It seems clear to us on the contrary that proceedings before tribunals which are quasi-judicial and not a court may well be considered to be judicial proceedings within the meaning of section 193 of the Indian Penal Code. Though the words " judicial proceedings " have been used in numerous sections of the Indian Penal Code, it has not defined the words, though the words " court of justice " as also the words " a judge " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to which we have already referred. Under section 11(3) as originally enacted every enquiry or investigation by a Board, Court or Tribunal shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code. When Parliament added to this section sub-section (8) what was enacted was that every tribunal shall be deemed to be a civil court for the purpose of section 480 and section 482 of the Criminal Procedure Code, 1898. After the amendment by Act 36 of 1956 the concluding portion of section 11(3) ran thus : " Every enquiry or investigation by a Board, Court, Labour Court, Tribunal or National Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code (XLV of 1860). The same Act substituted in section 8 the words Labour Court, Tribunal or National Tribunal " for the words " Tribunal ". In spite of the fact however that every enquiry or investigation by a Board has to be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, Parliament refrained from saying that a Board shall also be deemed to be a civil court for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be that if any person offers any insult, or cause any obstruction to a public servant when he is sitting in any such judicial proceeding and thus commits in offence under section 228 of the Indian Penal Code it will be possible for persons other than the public servants to institute a criminal case for such offence. This says the learned counsel, would be a very undesirable thing. We fail to see why this should be considered to be undesirable. But assuming this is so, that is not to our mind a consideration which should compel us to give the words " judicial proceeding " a meaning which they do not bear. It may be mentioned here, as already stated, that under section 171A(4) of the Sea Customs Act, 1874, every enquiry before a customs officer " shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code ". In spite of this, the Constitution Bench of this court held in its recent decision in Indo-China Steam Navigation Co. Ltd. v. Additional Collector of Customs (C.A. No. 770 of 1962, decided on February 3, 1964) that a customs officer is not even a tribunal. After discussing several previous decisions of this court Gajen ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
