Skip to content


income-tax Officer, Hassan Vs. Dharmachand Multanml - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKarnataka High Court
Decided On
Case NumberCriminal Revision Petition Nos. 255 and 259 to 262 of 1971
Judge
Reported in[1972]86ITR70(KAR); [1972]86ITR70(Karn)
ActsIncome Tax Act, 1961 - Sections 276C and 279
Appellantincome-tax Officer, Hassan
RespondentDharmachand Multanml
Appellant AdvocateS.R. Rajasekharamurthy, Adv.
Respondent AdvocateV. Krishnamurthy, Adv.
Excerpt:
.....due to negligence fail to put the relevant evidence to prove the charge against the accused person, they should not be permitted to fill up the gaps. if the sanction had not been obtained the prosecution is bad and is vitiated on that account......filed an application under section 540, criminal procedure code, stating that due to inadvertence, sanction obtained to prosecute the accused was not brought to the notice of the court to recall p.w. 1 and examine him to exhibit the sanction in the interest of justice. 4. the learned magistrate rejected the application filed by the income-tax officer holding that the prosecution at the late stage cannot be allowed to fill up the gaps. it is no doubt true that it is a well-settled principle of law that the prosecution should not be allowed to fill up the gaps in the prosecution case after the case is closed. the principle is that if they purposely or due to negligence fail to put the relevant evidence to prove the charge against the accused person, they should not be permitted to fill up.....
Judgment:

C. Honniah, J.

1. These revision petition are directed against the orders passed in C. Co. Nos. 1622, 1623, 1624, 1625 and 1626 of 1969 by the Munsiff and First Class Magistate, Chickmagalur. The main question to be decided in these revision petitions is whether the Magistrate was justified in refusing the prayer to recall P.W. 1 to the alleged sanction to prosecute the petitioner for offenses under section 276C of the Income-tax Act of 1961.

2. In the complaint, the Income-tax Officer mentioned that he had obtained the authorization to prosecute the respondent herewith from the competent authority and stated therein that the authorisation had been filed along with the complaint.

3. The Income-tax Officer adduced evidence to show that the respondent had filed no returns for certain years. The accused-respondent adduced evidence to show that he could not file the returns as he was sick and bedridden and in his behalf he has examined two doctors and himself. The case on both the sides was closed and arguments were heard. During the course of the argument, the accused's counsel pointed out that there was no sanction to prosecute him and therefore the complaint should be dismissed. At that stage, the Income-tax Officer filed an application under section 540, Criminal Procedure Code, stating that due to inadvertence, sanction obtained to prosecute the accused was not brought to the notice of the court to recall P.W. 1 and examine him to exhibit the sanction in the interest of justice.

4. The learned Magistrate rejected the application filed by the Income-tax Officer holding that the prosecution at the late stage cannot be allowed to fill up the gaps. It is no doubt true that it is a well-settled principle of law that the prosecution should not be allowed to fill up the gaps in the prosecution case after the case is closed. The principle is that if they purposely or due to negligence fail to put the relevant evidence to prove the charge against the accused person, they should not be permitted to fill up the gaps. But, however, in this case, the only lacuna as just not appears is that the sanction to prosecute the accused has not been exhibited. In the complaint petition itself it is mentioned that an authorisation had been obtained to prosecute the accused and also the same has been produced along with the complaint. That does not mean that the Magistrate should look into every document that is put forward by the prosecution. It is the duty of the prosecution to bring it to the notice of the court at the relevant point of time that such a sanction is available and that may be looked into before deciding the case. But the reason given in this case is far from satisfactory. Inadvertence is not a reason to hold that the prosecution can, at any stage, recall a witness to produce the sanction. If, inadvertently, sanction to prosecute the accused was not obtained and the accused was prosecuted and then if the prosecution were to contend that they would obtain sanction to prosecute the accused and if the court accedes to the request of the prosecution, if would amount to abuse of the process of law. It is the paramount duty of the prosecution to bring to the notice of the court the sanction that had been obtained to prosecute the accused. If the sanction had not been obtained the prosecution is bad and is vitiated on that account. But, in this case, the sanction is said to have been obtained and had been filed along with complaint petition. It is not necessary to recall P.W. 1 for this purpose and it is open to court to look into the sanction produced by the prosecution and make use of it or reject the same. That is not the question in these revision petitions to be decided. At any rate, it is a matter left open for the Magistrate to decide whether to make use of the sanction now available or not and decide the case according to law. The parties may by permeated to address arguments on all matters including this one. The request of the Income-tax Officer cannot be granted.

5. With these observations, the revision petitions are disposed of.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //