1. These two petitions are directed against the orders dated 16th December, 1974, in Criminal Misc. No. 20 of 1974, and 16th December, 1974, in Criminal Misc. No. 17 of 1974, respectively, passed by the Judicial Magistrate, First Class, Siddapur, directing issue of distress warrants.
2. Criminal Misc. No. 20 of 1974 and Criminal Misc. No. 17 of 1974 were registered on the applications filed by the Commercial Tax Officer, Sirsi, under section 13(3)(b) of the Karnataka Sales Tax Act, 1957 (hereinafter referred to as the Act) before the Magistrate, praying that the amounts mentioned in the applications may be recovered from the present petitioners as if the amounts were fine imposed by the Magistrate. The Magistrate issued notices to the petitioners and the petitioners contended apart from other contentions, that they were not liable to pay the sums demanded and that the demand notices had not been served on them. The concerned demand notices were produced by the Commercial Tax Officer by filing a memo. The Magistrate acted on the demand notices and held that assessment orders had been passed against the petitioners and that the petitioners were to pay the sums demanded in the applications and further that they had committed default in not paying the sums within the periods mentioned in the demand notices. He, on taking this view, directed the issue of distress warrants against the petitioners for recovery of the amounts claimed in the applications.
3. As is seen from the records received in this revision, from the lower court, the material that was produced before the Magistrate was what was contained in the applications filed by the Commercial Tax Officer and the concerned office copies of demand notices and the postal acknowledgment due receipts.
4. Section 13(3)(b) of the Act states that the Magistrate should recover the amount as if it were a fine imposed by him. Section 13(4) of the Act lays down that the High Court may, either suo motu or on an application by the Commissioner or any person aggrieved by the order, revise any order made by a Magistrate under clause (b) of sub-section (3). It is evident therefrom that a right of revision contemplated under section 13(4) of the Act is not the same as the one contemplated in section 23 of the Act. The amounts mentioned in the applications filed by the Commercial Tax Officer, as arrears of sale tax due or any other amount due under the Act, are, in law, to be considered as fine imposed by a Magistrate, and it is on that basis the Magistrate is required to recover the same in exercise of his powers, which necessarily are the powers vested in him by section 421 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). Hence, it is crystal clear that recovery of the amount by the Magistrate as if it were a fine imposed by him, is done by the Magistrate under section 421 of the Code. In view of these circumstances and the position in law, these revision petitions are maintainable. They cannot be regarded as revision petitions under section 23 of the Act which are to be registered as sales tax revision petitions, according to the Rules of this High Court.
5. Under section 421(1) of the Code, a Magistrate can proceed to take action for the recovery of the fine in either or both of the following ways, that is to say, the may -
'(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter.'
6. There is a proviso to section 421(1) of the Code but it is not necessary to narrate it for purposes of these revision petitions. By the two orders in question, the Magistrate has directed that distress warrants should be issued against the assessees for recovery of the amounts claimed under the applications. It is plain that the Magistrate has not applied his mind to the provisions of section 421(1) of the Code. His orders ought to have clearly stated whether the warrants were to be issued for attachment and sale of movable properties or to the Collector of the district, authorising him to realise the amounts as arrears of land revenue from the movable or immovable properties, or both, of the defaulters, or for either of the two purposes. Therefore, the orders are not in accordance with this provision.
7. While acting under section 13(3)(b) of the Act, the Magistrate has to look into the assessment orders to ascertain whether such an order had been passed and that too for a particular sum against the particular person mentioned as the defaulter in the application filed by the Commercial Tax Officer and then proceed to take action to recover the said sum by applying the provisions of section 421 of the Code. As already pointed out, the concerned assessment orders have not been produced in these two cases. The contents of the applications and the office copies of the demand notices produced cannot be considered as satisfactory material to satisfy the Magistrate that in fact assessment orders had been passed against the petitioners. The Magistrate had to satisfy himself, i.e., before proceeding under section 421 of the Code, that the names of the petitioners were available in the concerned assessment orders as assessees. In the absence of that material, he could not have proceeded to act under section 421 of the Code. This is another reason why the orders in question are required to be set aside.
8. In view of the foregoing reasons, I allow these two revision petitions and set aside the orders dated 16th December, 1974, passed by the Judicial Magistrate, First Class, Siddapur, in Criminal Misc. No. 20 of 1974 and Criminal Misc. No. 17 of 1974. The records are directed to be remitted to the Court of the Magistrate for disposal of the proceedings according to law, bearing in mind the observations made in the body of the order.
9. Petitions allowed.