# SUPREME COURT REPORa:'S [1959] KAPUR CHAND POKHRAJ v. THE STATE OF BOMBAY

- **Citation:** [1959] 1 S.C.R. 250
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Criminal Revision Applications NOS. 351 to 353 of 1955
- **Bench:** B. P. Sinha, 0 Jafer Imam, SuBBA RAO
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-repora-s-1959-kapur-chand-pokhraj-v-the-state-of-bombay-1595
- **Pages:** 16

## Headnote

Criminal trial-Repeal of Penal Statute-Saving of 'Liability
incurred', scope of-Sanction by authority empowered under repealing
statute-If valid for prosecution for offence under repealed statute~
Sentence-Whether plea of guilty a consideration for awarding light
sentence-Enhancement of sentence-Bo:vibay Sales Tax Act, x946
(Bom. V of x946), ss. 2, 3 and 24, Bol!ibay Sales Tax Act, I953
(Bom. III of x953), ss. 2, 3, 36, 37, 48 and 49-Bombay Sales Tax
Ordinance II I of x952, ss. 2, 3, 3.6 and 37.
The appellant was registered under the Bombay Sales Tax
Act, 1946.
He maintained double sets of account books and
knowingly furnished, for the period September 30, 1950 to March
3r, 1951, false returns to the Sales Tax Officer and thereby committed an offence under s. 24(1)(b) of the Act. Under ti11l Act
sanction of the Collector was necessary before cognizance of the
offence could be taken by a Court. The 1946 Act was repealed
by the Bombay Sales Tax Act, 1952, but the 1952 Act was
declared ultra vires by the Bombay High Court. Thereupon the
Bombay Sales Tax Ordinance II of 1952 was promulgated which
provided that the 1946 Act was to he deemed to have been in
existence up to November l, 1952. This was followed by Ordinance III of 1952 which further extended the life of the 1946
, Act. Thereafter, the Bombay Sales Tax Act, 1953 was passed
which repealed both the 1946 Act and Ordinance III of 1952. The
1953 Act made provision for an offence similar to that covered
by s. 24(1)(b) of the Act, prescribed a similar procedure for
prosecuting persons committing the .aid offence and saved liabilities incurred under the 1946 Act. During the period when Ordinance III of 1952 was in force the State Government issued a
notification appointing the Additional Collector to be a Collector
under the Ordinance, and the Additional Collecter granted
sanction for the prosecution of the appellant.
The appellant was tried by the Presidency Magistrate before whom he
pleaded guilty. The Magistrate accepted the plea, convicted him
under s. 24(1)(b) of the 1946 Act and sentenced him to a fine of"
Rs. 200, in default to suffer one month's rigorous imprisonment.
The State prefefred a revision to the High Court for enhancement
of the sentence. The appellant contended that by the repeal of
the 1946 Act the offence was effaced. and that the prosecution
was defective inasmuch as sanction was given by the Additional
Collector and not by the Collector as required by the 1946 Act.
The High Court repelled both these contentions and enhanred the
sentence to rigorous imprisonment for one month in addition to
the fine already imposed ;
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S.C;R.
S~PREME COURT REPORTS
251
H.eld, that the offence under s. 24(1)(b) of the 1946 Act was
covered by the saving clause, in s. 48 of 1953 Act and the appellant could be convicted of that offence.
The saving. by s. 48 of
the 1953 Act of " any liability incurred " under the 1946 Act
saved both civil and criminal liability.
Held, that the sanction given by the Additional Collector
was a valid sanction for the prosecution of the appellant. The
notification issued under Ordinance III of I952 appointing the
Additional Collector as Collector must be deemed to have been
made in exercise of the relevant power in respect of the offence
saved by the Ordinance. Jiurther, the notification must be deemed
to have continued in force under the '!953 Act by reason of s. 49(2)
of that Act.
Sanction pertains to the domain of procedure and
the procedure prescribed.under the new 1953 Act must be followed
even in respect of offences committed under the repealed 1946
Act.
Held further, that in the circumstances of the case the High
Court was justified in enhancing the sentence. The sentence
shoul@l. depend upon the gravity of the offence and not upon the
fact that the accused pleaded guilty or attempted to defend the
case. As the appellant had kept double sets of account books, it
was eminently a case in which a substantive s.entence ought to
have b

## Text

ldarch a4~
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250
SUPREME COURT REPORa:'S
[1959]
KAPUR CHAND POKHRAJ
v.
THE STATE OF BOMBAY
(B. P. SINHA,
0
JAFER IMAM and SuBBA RAO, JJ.)
Criminal trial-Repeal of Penal Statute-Saving of 'Liability
incurred', scope of-Sanction by authority empowered under repealing
statute-If valid for prosecution for offence under repealed statute~
Sentence-Whether plea of guilty a consideration for awarding light
sentence-Enhancement of sentence-Bo:vibay Sales Tax Act, x946
(Bom. V of x946), ss. 2, 3 and 24, Bol!ibay Sales Tax Act, I953
(Bom. III of x953), ss. 2, 3, 36, 37, 48 and 49-Bombay Sales Tax
Ordinance II I of x952, ss. 2, 3, 3.6 and 37.
The appellant was registered under the Bombay Sales Tax
Act, 1946.
He maintained double sets of account books and
knowingly furnished, for the period September 30, 1950 to March
3r, 1951, false returns to the Sales Tax Officer and thereby committed an offence under s. 24(1)(b) of the Act. Under ti11l Act
sanction of the Collector was necessary before cognizance of the
offence could be taken by a Court. The 1946 Act was repealed
by the Bombay Sales Tax Act, 1952, but the 1952 Act was
declared ultra vires by the Bombay High Court. Thereupon the
Bombay Sales Tax Ordinance II of 1952 was promulgated which
provided that the 1946 Act was to he deemed to have been in
existence up to November l, 1952. This was followed by Ordinance III of 1952 which further extended the life of the 1946
, Act. Thereafter, the Bombay Sales Tax Act, 1953 was passed
which repealed both the 1946 Act and Ordinance III of 1952. The
1953 Act made provision for an offence similar to that covered
by s. 24(1)(b) of the Act, prescribed a similar procedure for
prosecuting persons committing the .aid offence and saved liabilities incurred under the 1946 Act. During the period when Ordinance III of 1952 was in force the State Government issued a
notification appointing the Additional Collector to be a Collector
under the Ordinance, and the Additional Collecter granted
sanction for the prosecution of the appellant.
The appellant was tried by the Presidency Magistrate before whom he
pleaded guilty. The Magistrate accepted the plea, convicted him
under s. 24(1)(b) of the 1946 Act and sentenced him to a fine of"
Rs. 200, in default to suffer one month's rigorous imprisonment.
The State prefefred a revision to the High Court for enhancement
of the sentence. The appellant contended that by the repeal of
the 1946 Act the offence was effaced. and that the prosecution
was defective inasmuch as sanction was given by the Additional
Collector and not by the Collector as required by the 1946 Act.
The High Court repelled both these contentions and enhanred the
sentence to rigorous imprisonment for one month in addition to
the fine already imposed ;
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S.C;R.
S~PREME COURT REPORTS
251
H.eld, that the offence under s. 24(1)(b) of the 1946 Act was
covered by the saving clause, in s. 48 of 1953 Act and the appellant could be convicted of that offence.
The saving. by s. 48 of
the 1953 Act of " any liability incurred " under the 1946 Act
saved both civil and criminal liability.
Held, that the sanction given by the Additional Collector
was a valid sanction for the prosecution of the appellant. The
notification issued under Ordinance III of I952 appointing the
Additional Collector as Collector must be deemed to have been
made in exercise of the relevant power in respect of the offence
saved by the Ordinance. Jiurther, the notification must be deemed
to have continued in force under the '!953 Act by reason of s. 49(2)
of that Act.
Sanction pertains to the domain of procedure and
the procedure prescribed.under the new 1953 Act must be followed
even in respect of offences committed under the repealed 1946
Act.
Held further, that in the circumstances of the case the High
Court was justified in enhancing the sentence. The sentence
shoul@l. depend upon the gravity of the offence and not upon the
fact that the accused pleaded guilty or attempted to defend the
case. As the appellant had kept double sets of account books, it
was eminently a case in which a substantive s.entence ought to
have been imposed, and the Magistrate improperly exercised his
discretion in awarding a sentence of fine only.
But the High
Court was wrong in awarding rigorous imprisonment. ass. i4(1)(b)
provided only for simple imprisonment.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeals Nos. 34 to 36,<?f 1956.
Appeal by special leave from the judgment and
order dated July I, 1955, of the Bombay H;igh Court
in Criminal Revision Applications NOS. 351 to 353 of
1955 arising out of the judgment and order dated
Kapur Chand
Pokhraj.
v.
The State of
Bombay
November 5, 1954, of the Court of the Presidency
\
Magistrate 14th Court at Girgaum, Bombay in Cas@s
Nos. 328 to 330/P of 1954.
,, H.J. Umrigar and A.G. Ratnaparkhi, for the appeh
l&nt.
· .
M. S. K. Sastri and R, H. Dhebar, f;r the respondent.
1958. March 24.
The following Judgment of the
Court was delivered by
·
. Su~BA l{Ao J.-These appeals by special leave are
Subba Rao J.
directed againsp the judgment of the High Court of
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Kapur Chand
Pokhraj
v.
The State of
Bombay
Subba Rao].
I
252
SUPREME COURT REPORT~
[1959]
' Judicature at Bombay made in three connected Criminal Revision applications and raise the question of the
~aintainability of prosecution of a person for an
offence committed under s. 24(l)(b) of the Bombay
Sales Tax Act, 1946 (Born. V of 1946) (hereinafter
referred to as the repealed Act).
The facts that give rise to the appeals may be briefl:v.
stated: The appellant, Sri Kapur Chand Pokhraj, was
the proprietor of Messrs. N. Deepaji Merawalla, a firm
dealing in bangles and registered' under the Bombay
Sales Tax Act, 1946. He did not disclose the correct
turnover of his sales to the Sales Tax Department in
the three quarterly returns ~urnished by him to the
said Department on September 30, 1950, December 31,
1950, and March 31, 1951, respectively.
He maintained double sets of books of accounts and knowipgly
furnished false returns for the said three quarters to
the Sales Tax Officer and thereby committed an offence
under s. 24(l)(b) of the repealed Act. Under that Act,
sanction of the Collector was a condition precedent for
launching of prosecution in respect of an offence committed under s. 24(1) of the said Act.
The said Act
was repealed by the Bombay Sales Tax Act, 1952
(.Born. XXIV of 1952), which was published on October 9, 1952. On December 11, 1952, the Bombay High,
Court declared the Act of 1952 uUra vires and the State
of Bombay, preferred an appeal against the judgment
of the Bombay High Court to the Supreme Court. On
December 22, 1952, the State Government, in order to
get over the dislocation caused by the Bombay judgment, issued the Bombay Sales Tax Ordinance II of
1952, whereunder it was provided that the 1946 Act
was to be deemed to have been in existence up to
November 1, 1952. On December 24, 1952, another""
Ordinance, OJ;llinance III of J 952, was promulgated
extending the life of the Act of 1946.
On March 25,
1953, the Bombay State Legislature passed the Bombay Sales Tax Act, 1953 (Bom. "III of 1953), (hereinafter referred to as the repealing Act), repealing the Act
of 1946 and the 'Ordinance III of 1952. The material
fact to be noticed is that the Act III of 1953, though
it repealed the earlier Act and the Ordiirancc extending
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S.C.R.
~UPREME COURT REPORTS
253
the life of that Act, made provision for an offence
similar to that covered bys. 24(1) of the repealed Act,
prescribed a similar procedure for prosecuting persons
committing the said offence and saved the liabilities
incurred under the repealed Act.
During the period
when the Ordinance III of 1952 was in force, the State
Government issued a notification under s. 3 of that
·Ordinance appointing the Additional Collector of
Bombay to be a Collector under the said Ordinance.
On July 4, 1953, i. i.'-, after Act III of 1953 came into
force; Mr. Joshi, the Additional Collector of Bombay,
granted sanction for the prosecution of the appellant
in respect of the offence committed by him under
s. 24(l)(b) of the repealed Act.
After obtaining the
sanction, the appellant was prosecuted under s. 24(l)(b)
of ihe Bombay Sales Tax Act, 1946.
Before the Presidency Magistrate the appellant pleaded guilty to the
charge. The learned Magistrate accepted his plea and
convicted him for the offence for which he was charged
and sentenced him to pay a fine of Rs. 200, in default
to suffer one month's rigorous imprisonment. The
State of Bombay preferred a Revision against the said
Order to the High Court of Judicature at Bombay
praying that the sentence imposed on the appellant be
enhanced on the ground that as the appellant kept
double sets of accounts and intentionally furnished false
information, the interest of justice required that substantive and heavy sentence should be imposed on
him.
B!lfore the High Court, the appellant pleaded
that by the repeal of the Sales Tax Act, 1946,. the·
offence, if any, committed by him was effaced and that
in any view the prosecution was defective inasmuch
as sanction had been given by the Additional Collector
and not by the Collector of Sales Tax. The contentions did not find favour with the lea{'.11ed Judge of the
High Court.
In rejecting them, the learned Judge
enhanced the sentence passed upon the appellant to
rigorous imprisonment for a period of one month in
each of the three cases in addition to the fine already
imposed by the Magistrate. He directed the substantive sentence of imprisonment in all the three cases to
be concurrent. The appellant obtained special leave
•
--
Kapur Chand
Pokh(aj
v.
The State of
Bombay
Subba Rao].
'
Kapur Chand
Pokhraj
"·
The State of
Bomba,y
Subba Rao].
'
254
SUPREME COURT REPORTS.
[1959]
from this Court to prefer the above appeals against the
judgment of the High Court.
The learned Counsel for the appellant raised before
us the same contentions which his client unsuccessfully
raised before the High Court. 'Vo shall now proceed
to deal with them seriatim.
The main argum<.mt of the learned Counsel was that
the Bombay Sales Tax Act, 1953 (Born. III of 1953) in·
repealing the Act of 1946 did not save penalties in
respect of offences committed ooder that Act and
therefore no prosecution w~s maintainable in resp~ct
of an offence committed under the Act of 1946.
A
clearer conception of the argument can be had by
looking at the relevant saving provisions enacted in
Act III of 1953 and aliio the relevant sections of the
Bombay General Clauses Act.
Section 48(2) of the
Bombay Sales Tax Act, 1953 reads:
•
"Notwithstanding the repeal of the said Act and
the said entries, the said repeal shall not affect or be
deemed to affect--
(i) any right, title, obligation or liability already
acquired, accrued or incurred ;
(ii) any legal proceeding pending 011 the 1st day of
Noyember, 1952 in respect of any right, title, obligation
or liability or anything done or suffered before the Raid
date; and any such proceeding shall be continued and
disposed of, as if this Act had not been passed;
(iii) the recovery of any tax or penalty which may
have become payable under the said Act and the said
entries befora the said date ; and all such taxes or
. penalties or arrears thereof shall be assessed, imposed
and• recovered, so far as may be, in accordance with
the provisions of this Act ; ".
Section 7 of the Bombay General Clauses Act says :
"
. " Where this Act, or any Bombay Act made after
the commencement of this Act, repeals any enactment hitherto made or thereafter to be made, then,
unless a different intention appears, the repeal shall
not--
(a) revive anything not in force or existing at the
time at which the repeal takes effect; or
(b) affect the previous operation of &11y enactment
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s.c.R.
SUPREME ·coURT REPORTS
255
so repealed or anything dv.ly done or suffered thereunder; or
.
(c) affect any right, privilege, obligation or liability
acquired, accrued or incurred under any enactment so
repealed ; or ·
(d) affect any penalty, forfeiture or punishment
x958
Kapur Ch1ind
Pokhraj
v.
The State of
Bombay
incurred in respect of any offence co.mmitted against
Subba Rao J.
•any enactment so repealed; or
(e) affect any investigation, legal proceeding or
remedy in respect o{ any such right, privilege, obligation, liability, penalty, forfeiture or punishment as
aforesaid,
/
and any such investigation, legal proceeding or remedy
may be instituted, continued or enforced, and any
such penalty, forfeiture or punishment inay be imposed,
as if the repealing Act had not been passed."
•
A comparative study of the aforesaid provisions
indicates that while under s. 7 of the Bombay
General Clauses Act, there is a specific saving of any
penalty, forfeiture or punishment incurred in respect
of any offence committed
under the enactment
repealed, as distinct from civil rights and liabilities,
under s. 48 of Act III of 1953, there is no separate
treatment of Civil and Criminal matters; while mider
the former provisions legal proceedings are saved,
under the latter provisions legal proceedings pending
on November I, 1952, in respect of rights acquired or
~
liabilities incurred under tlre repealed Act are saved.
By such a study of the two provisions, the arguinerit
proceeds, it is clear that the enactment of a specific
saving clause in the repealing
Act indicates a
"different intention " excludingfthe operation of s. 7 Of
the General Clauses Act and the omission under s. 48 of
the repealing Act of a clause similar to cl. (d) of s .. 7 of
the General Clauses Act, demonstrates that the liability ·saved excludes criminal liability. In. our view
'the consideration of the provisions of s. 7 of the
·General Clauses Act need not detain us, for s. 48(2)(i)
"of· the repealing Act affords a complete answer to the
· qliMtion raised.
Under that clause, the repeal did not
·affect any right, title or obligation or liability already
•acquired, acocued or incurred. The words " liability
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z958
KapUy Chand
P~khraj
v.
The State of
Bombay
Subba Rao].
,
256
SUPREME COURT REPORT~
[1959]
incurred " are very general and comprehensive and
ordinarily take in both civil and criminal liability. In
Criminal Law the term " liability" covers every form
of punishment to which/ a man subjects himself by
violating the law of the land. There is no reason why
the all comprehensive word should not carry its full
import but be restricted to civil liability alone ? The
context does not compel any such limitation. Indeed,•
there is no conceivable ground to impute to the
Legislature the intention to wipe out the offences
committed under the repealed Act, when it expressly
retained the same offences under the repealing Act.
If there was any justification for preserving Civil
liabilities incurred under the repealed Act, there was
an equal justification to save criminal liabilities
incurred under that repealed Act.
The fact that s. 7
of the Bombay General Clauses Act provided se1:Jarately in different clauses for Criminal and Civil liabilities, while s.\ 48(2) of the repealing Act clubbed them
together in dne clause is not decisive of the question
raised, as, for ought we know, s. 48 might be an
attempt by the Legislature at precise drafting by
omitting unnecessary words and clauses. Nor the
ciNumstance that a special provision is made under
s. 48(2) of the repealing Act for pending proceedings
is indicative of any conscious departure by the Legislature from the established practice embodied in s. 7
of the General Clauses Act indicating an intention to
save only offences under the repealed Act in respect of
which legal proceedings were pending on a specified
date. It is more likely, as the learned Judge of the
Bombay High Court P.Ointed out, that cl. 2 was
enacted to obviate the~rgument that once a case is
sent up the liability merges in the proceedings
...
launched and has to be saved specially. On a fair
reading of the terms of the saving clause ins. 48(2) of
the repealing Act, we cannot give a restricted meaning
to the words "liability incurre<i ", especially when
the scheme of the Act does not imply that the Legialature had any intention to exclude from the saying
clause criminal liability incurred under the repealed
Act. We, tperefore, hold that the liabjlity incurred,
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S.C.R.
SeTPREIVIE COURT REPORTS
257
i. e., the offence committed, under the repealed Act, is
covered by the saving clause embodied in s. 48 of the
repealing Act. In this view it is not necessary to
express our view whether, by reason of the saving
clause enacted ins. 48 of the repealing Act,1.the Legislature indicated a different intention -¢ithin the
meaning of s. 7 of the Bombay General Clauses Act
~o a,s to exclude its operation in construing the provisions of the repealing Act.
Even so, the lear~d Counsel contended that the
appellant, who committed the offence under the
repealed Act, should be prosecuted only with. the
previous sancti.on of the Collector as provided by that
Act, but as the sanction in the present case was-given
by the Additional Collector, the Magistrate had no
jurisdiction to take cognizance of the offence. To
appr'eciate this argument it would be necessary to
notice the provisions relating to sanction in the repealing Act and in the Acts and Ordinances that preceded
it.
,
"BOMBAYj SALES TAX ACT, 1946.
"Section 24 (J)(b): Whoever-fails, without sufficient cause, to submit any' return as required by
section 10 or knowingly submits a_ false return,. ....... .
shall, in addition to the recovery of any tax that may
be due from him be punishable with simple imprisonment which may extend to six months or with fine not
exceeding one thousand rupees or with both; and when
the offence is a continuing one, with a daily fine not
exceeding fifty· rupees during the period of the continuance of the offence."
" Section 24(2) : No Court shall take cognizance of
" any offence under this Act, or under the rules made
'thereunder, except with the previous sanction of the
Collector and no Court inferior to that <1f a Magistrate
of the Second Class shall try any such offence.':
"Section 2(a): "Collector "means the Collector of
Sales Tax appointed under sub-section (1) of Sectioi113."
-
" Section 3(1) : For carrying out the purposes of
33
•
•
Kapur Chand
Pokhraj
v.
•
The State of
Bombay
Subba. Rao J.
l(apur Chand
Pokhraj
• v.
The State of
Bonibay
Subba Rao ].
258
SUPREME COURT REPORT~
[1959)
•
I
this Act, the State Government may appoint any
person to be a Collector of Sales Tax and such other
persons to assist him as the State Government thinks
fit."
ORDINANCE No. II of 1952:
Under this Ordinance, Bombay Act V of 1946 and
the entries relating to the said Act in the third
schedule to the
Bombay
Merged States (Lawsj
Act, 1950 were deemed to have continued to be in
force up to and inclusive of N ov.,mber 1, 1952.
ORDINANCE III OF 1952:
"Section 36. Offences and Penalties: Whoevcr-
(b) fails without sufficient cause, to furnish any
return or statement as required by section 13 or 18 or
knowingly furnishes a false return or statement .........
........................................................................
shall, in addition to the recovery of any tax that may
be due from him, be punishable with simple imprisonment which may extend to six months or with fine not
exceeding two thousand rupees or with both ; and
when the offence is a continuing one, with a daily fine
not exceeding one hundred rupees during the period of
the continuance of the offence."
• "Section 37. Cognizance of offences. (1). No Court
shall take cognizance of any offence punishable under
section 36 or under any rules made under this
Ordinance except with the previous sanction of the
Collector and no Court inferior to that of a Magistrate
of the Second Class shall try any such offence."
"Section 2(6): "Collector" means the Collector
of Sales Tax appointed under section 3."
' " Section 3(1) : For carrying out the purposes of
this Ordinance, the State Government may appoint
any person to be a Collector of Sales Tax, and such
other persons to assist him as the State Government
thinks fit."
•
,
BOMBAY SALES TAX AC'f, 1953 (Act III of
1953):
.
" Section 36 : Whoever-
(b) fails without sufficient cause, to furnish ~ny
return or statement as required by Section 13 or 18 or
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S.C.R.
1'UPREME COURT REPORTS
259
knowingly furnishes a false return or statement.........
1958
shall, in addition to the recovery of any tax that may
be due from him, be punishable with simple imprisonment which may extend to six months or with fine
not exceeding two thousand rupees or with both ; and
when the offence is a continuing one, with a daily fine
'hot exceeding one hundred rupees during the period
of the continuance of the offence."
"Section 49 (2) :e Any appointment, notification,
notice, order, rule, regulation or form made or issued
or deemed to have been made or issued under the
Ordinance hereby repealed shall continue in force and
be deemed to have been made or issued under the
provisions of this Act, in so far as such appointment,
notification, notice, order, rule, regulation or form is
not inconsistent with the provisions of this Act, unless
it has been already, or until it is superseded by an
appointment, notification, notice, order, rule, regulation or form made or issued under this Act."
THE BOMBAY SALES TAX (AMENDMENT)
ACT, 1956.
(BOMBAY ACT NO. XX XIX OF 1956)
"Section 3.
Amendment to. section 3 of Bom. III
of 1953: In section 3 of the said Act, for sub-sec- ·
tion (1), the following sub-section shall be and shall be
deemed ever to have been substituted, namely:-
(1) for carrying out the purpose of this Act, the
State Government may appoint-
(a) a person to be the Collector of Sales Tax, and
(b) one or more persons to be Additional Collectors of Sales Tax, and
(c) such other persons·to assist the Collector as
'
the State. Government thinks fit."
NOTIFICATION ISSUED BY T'HE STATE
GOVERNMENT UNDkR SECTION (3) OF THE
ORDIN ANGE III OF 1952:
"Government ,of Bombay is pleased to declare
the, "Additional Collector of Sales Tax,. Bombay
State, Bombay, as "Collector of Sales Tax, Bombay
State, Bomba,y" ~or purposes of the Bombay Sales
•
•
Kapur Chand
Pokhr6-j
v.
The State of
Rom bay
Subba Rao ].
•
•
Kap1ir Chand
Pfhhraj
v.
The State of
Bombay
Subba Rao ).
260
SUPREME COURT REPORTS
[1959]
Tax (No. 2) Ordinance, 1952 (Bombay Ordinance No.
III of 1952)."
.
It will be seen from the aforesaid provisions that
under the Acts as well as under the Ordinances,
knowingly furnishing a false return or statement is
made an offence punishable with simple imprisonment
or fine or with both. The only difference is that under
the Ordinance and the Act of 1953, the maximum•
amount of fine is increased from Rs. 1,000 to Rs. 2,000.
Under the. Ordinance as well as under the.Acts, no
Court can take cognizance of the said offence except
with the previous sanction of the Collector. The term
" Collector " is defined in similar terms in the Ordinance as well as in the Acts, i.e., a person appointed as
" Collector " by the State Government. The notification issued by the State Government under Ordinance
III of 1952, appointing the Additional Collector as
Collector of Sales Tax must be deemed to have continued to be in force under the Bombay Sales Tax Act,
1953, by reason of s. 49 (2) of that Act, as it is common
case that no fresh notification was ma.de under that
Act repea,ling that made under that Ordinance. Shortly
stated, the Bombay _Act III of 1953, introduced the
same offence and provided for the same machinery
that its predecessors contained.
On the basis of the aforesaid provisions, the argument of the learned Counsel for the appellant is .that
as the State Government appointed the Additional
Collector as Collector of Sales . Tax in exercise of the
power conferred on it under the Ordinance III of 1952
and not under the power conferred on it by the repealed '.Act, the sanction given by the Additional Collector
to prosecute the appellant is invalid.
The first
answer to this contention is that, as the State Government had the power to appoint any person including
an Additional e:ollector as Collector of Sales Tax both
under the repealed Act as well as the Ordinance III
of 1952, the appointment may reasonably be construed
to have been made in exercise of the relevant power in
respect of the offence saved under the Ordinance.
The second answer is more fundamental.
There is an
essential distinction between an offepce and the
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S.C.R.
-SUPREME COURT REPORTS
261
prosecution for an offence. The former forms part of
the substantive law and the latter of procedural law.
An offence is an aggregate of acts or omissions punishable by law while prosecution signified the procedure
for obtaining an adjudication of Court in respect of
such acts or omissions. Sanction or prior approval of
an -authority is made a condition precedent to pro-
• secute in regard to specified offences.
Prosecution
without the requisite sanction makes the entire
proceeeding ab
ini~o void. It is intended to be a
safeguard against frivolous prosecutions and also to
give an opportunity to the authority concerned to
decide in the circumstances of a particular case whether
prosecution is necessary. Sanction to prosecute for
an offence is not, therefore, an ingredient of the
offence, but it really pertaif!S to procedure. In Maxwt!ll's Interpretation of Statutes, the following passage
. appears at page 225:
"Although to make a law punish that which, at
the time when it was done, was not punishable, is
contrary to sound principle, a law which merely alters
the procedure may, with perfect propriety, be made
applicable to past as well as future transactions."
In the instant case when the repealing Act did. not
make any change either in the offence or in the procedure prescribed to prosecute for that offence and
expressly saved the offence committed under the
repealed Act, the intention can be legitimately imputed to the Legislature that the procedure prescribed
under the new Act should be followed, even in respect
of offences committed under the repealed Act. If so,
it follows that, as sanction pertains to the domafn of
procedure, the sanction given by the Additional
Collector appointed by the State as Collector of Sales_
Tax was valid .
Even so, it was contended that "the notification
appointing the Additional Collector as Collector of
Sales Tax issued imder Ordinance No. II of 1952
would not enure to the prosecution launched under·
Act III of 1953. This argument ignored the express
provisions of s. 49 (2) of the said Act (already extracted supra), wqich in clear and express terms laid down
•
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Kapur Chaqd
Pokh[aj
v.
The Stal• of
Bombay
S14bba RaB j.
•
Kapur Chand
Po~hraj
v.
The State of
Bomb.iy
Subba Rao ].
•
262
SUPREME COURT REPORTS•
[1959]
that notifications issued or orders made under the
repealed Ordinance would be deemed to have been made
or issued under the provisions of the Act and would
continue to be in force until superseded by appropriate
orders or notifications under the new Act. It was not
suggested that any fresh notification revoking that
made under the Ordinance was issued under the
repealing Act. If so, it follows· that the notification •
issued under the Ordinance appointing the Additional
Collector as Collector of Sales Ta~ continued to be in
force when the said Collector gave sanction to prosecute the appellant. In this view it is not necessary
to consider the scope of the Bombay Sales Tax
(Amendment) Act, 1956.
Lastly, a strong plea was made for reducing the
sentence of imprisonment given by the High Court to
that of fine.
It was said that the Magistrate "in
exercise of his discretion gave the sentence of fine and.
the High Court was not justified in enhancing the same
to imprisonment without giving any reasons which
compelled them to do so.
Reliance was placed in this
context on two decisions of this Court-Dalip Singh v.
State of Punjab(') and Bed Raj v. The State of Uttar
Praaesh (2).
In the former case, the Sessions Judge
convicted each of the 7 accused under s. 302, Indian
Penal Code read with s. 149, Indian Penal Code.
As
the fatal injuries could not be attributed to any
one of the accused, he refrained from passing a
sentence of death, but instead he convicted them to
imprisonment for life. The High Court, without giving
any reasons, changed their sentences from transportation "to death. Bose J. who delivered the judgment
of the Court, in holding that the High Court should
not have interfered with the discretion exercised by
the Sessions Judge, made the following .observation at
page 156:
•
"But the discretibn is his and if he gives reasons
on which a judicial mind could •properly found, an
appellate Court should not interfere.
The power to
enhance a sentence from transportation to death showld
very rarely be exercised and only for the strongest
(1) [1954] S. C.R. •45-
(2) [1955] 2 S. C· R. 583.
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S.C.R.
~UFREME COURT REPORTS
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possible reasons.
It is not enough for an appellate
Court to say, or think, that if left to itself it would
have awarded the greater penalty because the discretion does not belong to the appellate Court but to the
trial Judge and the only ground on which an appellate
Court can interfere is that the discretion has been improperly exercised, as for example, where no reasons
•are given and none can be inferred from the circumstances of the case, or where the facts are so gross that
no normal Judicial. mind would have awarded the
lesser penalty."
In the latter case, the appellant along with another
was convicted by the Sessions Judge under s. 304
Indian Penal Code and sentenced to three years'
rigorous imprisonment. On appeal the High Court
enhanced the sentence to ten years. In enhancing the
sentence, the learned Judges gave the reason that the
deceased was unarmed and the attack was made with
a knife and it could not be said that the appellant did
not act in a cruel or unusual manner.
This Court, in
allowing the appeal on the question of sentence, made
the following obs~rvation at page 588:
" A question of a sentence is a matter of discretion and it is well settled that when discretion .has
been properly exercised along accepted judicial lines,
an appellate Court should not interfere to the detriment of an accused person .except for very strong
reasons which must be disclosed on .the face of the
judgment .................. In a matter of enhancement
there should not be interference when the sentence
passed imposes substantial punishment. Interference
is only called for when it is manifestly inadequate."
These observations are entitled to great weight. But
it is impossible to lay down a hard and fast rule, for
each case must depend upon its own facts.
Whether
in a given case there was proper exercise of judicial
discretion by the trial Judge depends upon the circumstances of that case.. In the present case, the appellant kept double sets of account books and submitted
fal:te returns for successive quarters, omitting from the
turn-over shown by him in the returns substantial
amounts. Upder s. 24(1) of .the. Act, infringement of
•
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Kapur Chand
Pokh~aj
v.
The State of
Bombay
Subba Rao].
•
Kapur Chand
Pokhraj
'v.
The Slate of
Bombay
Subba Rao ].
•
264
SUPREME COURT REPORTS
[1959]
the provisions of the Act is made puniRhable. The
offences under that section are of different degrees of
moral turpitude. They range from a mere infringement of a rule to conscious and deliberate making of
fals(l returns. For all the offences, the section fixes the
maximum punishment of simple imprisonment which
may extend to six months. The magistrate, who tries
the offenders under that section, is given a wide discre- •
tion to mould the punishment in such a way as to
make it commensurate with the n&ture of the offence
committed. Though the appellant adopted a tiystematic scheme to defraud the State by keeping double
sets of account books and therefore deserved deterrent
punishment, the learned Magistrate, presumably
because the appellant pleaded guilty, without giving
any reasons, gave him the lenient punishment of fine
of Rs. 200.
It is obvious that the sentence shorild
depend upon the gravity of the offence committed and
not upon the fact that the accused pleaded guilty or
made an attempt to defend the case.
In the circumstances the High Court was certainly justified in
enhancing the sentence from fine to imprisonment and
fine and it had given good reasons for doing so.
The
Hig[t Court thought and, in our view, rightly that as
the appellant had kept double sets of account books,
it was eminently a case in which a substantive sentence
ought to have been imposed.
The Magistrate has improperly exercised his discretion within the meaning of
the aforesaid observations of this Court and therefore,
the High Court was certainly within its right to
enhance the sentence .
Bnt the High Court committed a mistake in awarding a sentence of rigorous imprisonment for a· period of
one month, which it is not entitled to do under the
provisions of s. 24(1) of the Act.
Under that section
the Court had jll'tisdiction only to give a maximum
sentence of simple imprisonment extending to 6 months
but had no power to impose a sentilnce of rigorous imprisonment. This mistake, if any, should· go to the
benefit of the appellant, for the High Court might have
imposed a sentence of longer period of simple imprisonment if it had realised that it had no pow~r to sentence
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S.C.R.
~UPREME COURT REPORTS
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the appellant to rigorous imprisonment. Be it as it
may, as the High Court had no power to impose a sentence of rigorous imprisonment we change the sentence
from rigorous imprisonment to simple impriso.nment
for a period of one month in each case. 'Vith this
modification the appeals are dismissed.
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Appeals dismissed .
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SHRIMATI SHANTABAI
v.
STATE OF BOMBAY & OTHERS
(S. R. DAS c. J., VENKATARAMA AIYAR, s. K. DAS,
A. K. SARKAR and VIVIAN BosE JJ.)
Fundamental Rights, Enforcement of-Unregistered document
conferring right to cut and appropriate wood from forest land-Pro"
prietary interest vested in State by subsequent enactment-Claim
founded on rights accruing from such document, if maintainableConstitution of India, Arts. I9(I)(f), I9(I)(g)-Madhya Pradesh
Abolition of Proprietary Rights (Estates, Mahals, Alienated Larrds)
Act, r950 (No. I of I95I).
By an unregistered document the husband of the petitioner ·
granted her the right fo take and appropriate all kinds of
wood from certain forests in his Zamindary. With the passing
of the Madhya Pradesh Abolition of Proprietary Rights (Estates,
Mahals, Alienated Lands) Act, 1950, all proprietary rights in
land vested in the State under s. 3 of that Act and the
petitioner could no longer cut any wood. She applied to the
Deputy Commissioner and obtained from him an order under
s. 6(2) of the Act permitting her to work the forest and started
cutting the trees.
The Divisional Forest Officer too.k action
"
against her and passed an order directing that her name might be
cancelled and the cut materials forfeited. She .moved the State
Government against this order but to no effect. Thereafter she
applied to this Court under Art. 32 of the Constitution and contended that t.he order of Rorest Officer infringed her fundamental
fights under Arts. 19(1)(f) and 19(1)(g) :
,
Held (per curiam), that the order in question did not infringe
the ffmdamental rights of the petitioner under Arts. 19(1)(f) and
19(1)(g) and the petition must be dismissed.
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Kapur Chand
Pokhrf!lj
v.
The Statt of
Bombay
Subba Rao j.
March 24.
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