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Surinder Singh Kairon Vs. V.D. Subramanium, Income Tax Commissioner - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1970CriLJ121
AppellantSurinder Singh Kairon
RespondentV.D. Subramanium, Income Tax Commissioner
Excerpt:
.....passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - on march 1, 1965, the accused appeared and admitted that he bad not shown income of..........surinder singh kairon. surinder singh kairon in his application has prayed for the complaint cases filed by the commissioner of income-tax against him under section 277 of the income-tax act, 1961 being transferred to some court at chandigarh. the commissioner of income-tax in his application, has prayed that the cases be transferred to the high court.2. the facts leading to the making of these applications are as follows. on october 11, 1963, surinder singh kairon, assessee-accused. filed a return pertaining to the assessment yeai 1962-63 showing income of rs. 1,41,060. enquiry in to the cases was held by the inoome. tax officer, central circle, delhi. on march 1, 1965, the accused appeared and admitted that he bad not shown income of his two concern?, namely, national motors and.....
Judgment:
ORDER

Gopal Singh, J.

1. Criminal Miscellaneous Application No. 1467 of 1968 under Section 526 of the Criminal Procedure Code has been filed by Surinder Singh Kairon against the Commissioner of Incom-tax, Delhi. Criminal Miscellaneous Application No. 8-M of 1969 and Criminal Miscellaneous Application No. 9.M of 1969 have been filed under the same section by the Commissioner of Income-tax. Delhi against Surinder Singh Kairon. Surinder Singh Kairon in his application has prayed for the complaint cases filed by the Commissioner of Income-tax against him under Section 277 of the Income-tax Act, 1961 being transferred to some Court at Chandigarh. The Commissioner of Income-tax in his application, has prayed that the cases be transferred to the High Court.

2. The facts leading to the making of these applications are as follows. On October 11, 1963, Surinder Singh Kairon, assessee-accused. filed a return pertaining to the assessment yeai 1962-63 showing income of Rs. 1,41,060. Enquiry in to the cases was held by the Inoome. tax Officer, Central Circle, Delhi. On March 1, 1965, the accused appeared and admitted that he bad not shown income of his two concern?, namely, National Motors and Elite Cinema. On March 6, 1965, he filed a revised return for Rs. 3,93,279. Assessment of the accused was made. Similarly, in the return pertaining to the assessment year 1963-64, the accused did not show full income from his business. Later on he filed revised return showing larger income. On July 27, 1966. two complaints under Section 277 of the Income-tax Act for making false statements in respect of his income in his said two returns were filed. Both these complaints were filed on behalf of the Commissioner of Income-tax. Delhi, against the accused. Attempts were made to effect service on the accused, but to no avail.

3. On November 3, 1966, the accused made an application to the Commissioner of Income-tax under Section 279 of the Act for composition of the claim of assessment made against him. In that application, he referred to the pendency of the above referred to two complaints in the Court of Shri R.K. Shinghal. Thus he knew that the complaints were pending against him.

4. Finding that the accused was deliberately avoiding and evading to accept service and o appear in Court, orders under Section 87 of the Criminal F. C., for the issue of proclametion against him and under Section 88 of the Code for attachment of his property were passed. On 8-11-1967, the accused sent a telegram to the Court communicating about his inability to appear on that date. His counsel, however, appeared in Court on that date. He gave an undertaking that he would produce the accused on 8-12-1967, the next date fixed in the case. The accused did not appear on that date. The undertaking given was not honoured. Eventually, the accused appeared in Court on 11-3-1968. He was released on bail on execution of bond with one surety in the sum of rupees one thousand and the case was adjourned to 16.4.1968 for evidence of prosecution being recorded. The accused was absent again. An application supported by a medical certificate was received from him. The Court granted him exemption from personal appearance in Court.

5. On 8-5-1968, there was made an application on behalf of the accused that the cases had been compromised and the claim of the Income-tax Department settled. The cases were adjourned for reply to the application and arguments thereof to 30-5-1968. Reply to the application was filed on behalf of the Department. The arguments were not heard. The case was adjourned for arguments to 27-6-1968. Neither the accused nor his counsel appeared in Court on that date. A telegram was again received from the accused for the cases being adjourned. The Court cancelled his bail and forfeited his security. Notice was issued to his surety under Section 514 of the Criminal P. C., to show cause on 9-7-1968 as to why the amount of security should not be recovered from him. Bailable warrants were issued to the accused to appear on that date. On 9-7-1968, neither the accused nor his surety turned up. On that date, the Court passed the order that the accused was avoiding appearance in Court to delay the disposal of the cases and directed for issue of non-bailable warrants for his arrest. On 22-7-1968, the ccused appeared.

He was released on fresh bail bond with one surety in the sum of rupees five thousand. The case was adjourned for arguments in the above-mentioned application to 6-8-1968. In the proceedings against the previous surety, the trial Court took the view that the absence of the accused was not intentional and there was no need for the surety being proceeded against. Thus, the proceedings against the surety were dropped. When the cases came up for arguments on the above application on 6-8-1968, an application was made by the accused to the Court saying that the accused intended to move the High Court for transfer f these case from Patials to Chandigarh. Although the accused undertook to do so, no application for transfer was filed for a period of four months. The application under Section 526 of the Criminal P. C, was made in the High Court on behalf of the accused on 4-12-1968 on the ground that it would be convenient for him if these cases could be tried at Chandi garh. The Commissioner of Income-tax also filed two applications for transfer to the High Court of the two complaint cases pending before the trial Court at Patiala.

6. Both the complainant and the accused want that the cases be transferred to Chandigarh. The prayer of the complainant is that they be traneferred to the High Court on the original side whereas the accused has prayed that the cases be transferred to some Court at Chandigarh. Considering that the cases are not of any extraordinary public importance nor any difficult and intricate questions of law are involved in them, these are not fit cases for transfer to the High Court on the original side.

7. The above referred to course of proceedings and conduct of the accused in the first instance in avoiding to accept service and later on after having accepted service in adopting dilatory tactics to delay the disposal of cases, shows that he had been seeking adjournment after adjournment on one pretext or the other. He attained the end of postponing the commencement of the trial of these cases by the above referred to dilatory ways and means presumably in co-operation or league with the presiding officer of the trial Court. But for the favourable inclination shown by the presiding officer in accding to the requests made on behalf of the accused from time to time for adjournment of the cases, the object of delaying their disposal would not have been achieved by the accused. Under the circumstances, there is every justification for these cases being transferred from the trial Court and entrusted to some other Court for disposal. The accused has himself prayed for the cases being transferred to some Court at Chandigarh. His counsel, however, wants that these cases be tried by some Judicial Magistrate at Chandigarh. Considering the influence which the accused has exercised upon and also taking into account his conduct in manoeuvring to secure the sympathy of the Judicial Magistrate at Patiala, it will not be difficult for him to make another Judicial Magistrate at Chandigarh to toe the line of his wishes and secure his sympathies for the disposal of the complaints being delayed,

8. The complaints were filed as long ago as July 27,1966. Two years and six months have rolled by and the trial of the complaints as not as yet commenced. There is reasonable apprehension in the mind of the complainant that the accused, who is the son of late Shri Partap Singh Kairon, Chief Minister, Punjab, will approach and exercise inflnence upon the presiding officer of the transferee Court of a Judicial Magistrate because of his wide contacts. There is every likelihood of subordinate Court of the status of a Judicial Magistrate being again approached and influenced by the accused. To obviate the necessity, which might be occasioned for another order of transfer from the Court of a Judicial Magistrate at Chandigarh, if the cases are now transferred to it for trial, I think it expedient and proper to transfer the cases to the Court of the Sessions Judge at Chandigarh.

9. The counsel for the accused raised an objection against the transfer of the cases to the Court of the Sessions Judge at Chandigarh on the ground that if the cases are transferred to his Court, the accused would be deprived of the right of appeal against the judgment of his conviction, if any recorded against him and thus remedy available to him would be lost. Under Section 526 of the Criminal Procedure Code, High Court has power to transfer a case to the Court of Session although the case sought to be transferred is pending in the court of a Judicial Magistrate. The relevant portion of Section 526 of the Code pertaining to the power to so transfer a case is reproduced below:

Whenever it is made to appeal to the High Court:

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate to the High Court,

* * * *it may order...that any particular case or ppeal or class of cases or appeals be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction.

10. The above reproduced relevant portion of the provisions of Section 526 leaves no doubt that there inheres in the High Court power to transfer a case from a subordinate Criminal Court to another subordinate Criminal Court of co-ordinate jurisdiction or superior jurisdiction. As explained above, the facts and circumstances of the cases fully call for their transfer to the Court of superior jurisdiction, namely, the Sessions Judge at Chandigarh. In order that a fair and impartial trial of these cases may be had, I order that they be transferred to the Court of the Sessions Judge at Chandigarh.

11. There has already been inordinate and unnecessary delay in the disposal of these ases. The Sessions Judge will bring to bear upon their trial sense of expedition which they deserve. This will avoid protraction of their trial. In course of trial, adjournment be granted only if it is unavoidably necessary to do so. The parties will appear before the Sessions Judge on February 14, 1969. Their counsel have been informed accordingly.


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