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Shyam Sundar Jalan and anr. Vs. the State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. Case Nos. 271 to 273 and 275 to 276 of 1975
Judge
Reported inAIR1977Cal57
ActsConstitution of India - Article 134(1)
AppellantShyam Sundar Jalan and anr.
RespondentThe State and ors.
Appellant AdvocateN.C. Banerjee, ;A.K. Dhar and ;A.K. Mukherjee, Advs.
Respondent AdvocateJ.N. Ghosh, ;N.L. Pal, ;Anjan Kr. Mukherjee and ;B.C. Sen, Advs.
DispositionApplication dismissed
Cases ReferredMohanlal Thakkar v. State of Gujarat
Excerpt:
- .....chief presidency magistrate, calcutta, took cognizance but transferred the cases to some other learned magistrates for disposal. the offences related to those under sections 276-b, 276-d and 276-b of the income-tax act, 1961. six petitions in revision were filed for quashing the proceedings by way of test cases. it was represented before the court that hundreds of similar cases were pending before the magistrate. the principal point urged in support of the rules issued in those six petitions was that cognizance having been taken in all these cases by the learned chief presidency magistrate who transferred them the transferee magistrates were not competent to issue process. another point urged was that a company can have only one principal officer. directors were not principal.....
Judgment:

Sudhamay Basu, J.

1. This is anapplication under Article 134(1)(c) of the Constitution of India for a certificate of fitness for leave to appeal to the Supreme Court.

2. It appears that complaints were filed by the Income-tax Officer, A-Ward, against the directors of the Asiatic Oxygen and Acetylene Co. Ltd. and Asiatic Oxygen Co. Ltd. and one Mr. K. C. Gangwal designated as the Principal Officer, of the said companies for failure to deduct income-tax from the salary of the employees, for failure to submit return in time, for failure to take income-tax and super tax on dividends for certain period mentioned in various sections of the Income-tax Act. On receipt of complaints the learned Chief Presidency Magistrate, Calcutta, took cognizance but transferred the cases to some other learned Magistrates for disposal. The offences related to those under Sections 276-B, 276-D and 276-B of the Income-tax Act, 1961. Six petitions in revision were filed for quashing the proceedings by way of test cases. It was represented before the Court that hundreds of similar cases were pending before the Magistrate. The principal point urged in support of the rules issued in those six petitions was that cognizance having been taken in all these cases by the learned Chief Presidency Magistrate who transferred them the transferee Magistrates were not competent to issue process. Another point urged was that a company can have only one principal officer. Directors were not principal officers. As the Sanctioning Authority in those cases accorded sanctions against Mr. K. C. Gangwal as Principal Officer and against other Directors, the same was bad. By a judgment delivered by us on the 27th of January, 1976, the six petitions Cr. Rev. 271 to 276 of 1976 were disposed of. The rules except in Cr. Rev. 274 of 1975 were discharged. On consideration of the facts and circumstances we were unable to hold that the learned Magistrate had nojurisdiction or competence to issue process. We also held that it would be premature at that stage to quash the proceedings. In our view the point as to whether accused persons who are designated as Directors are Principal Officers or Agents could only be determined after witnesses were examined. The present application relates to the said judgment and order.

3. Although we are of the view that some of the points raised are of importance it appears that the order we passed cannot be said to be a final one. Mr. N. C. Banerjee, learned Advocate appearing in support of the petition concedes that the orders passed by the learned Magistrates which were dealt with by us in our judgment are interlocutory in nature but he argued that our refusal to invoke the inherent powers was, however, final and therefore, he was entitled to have a certificate. He relied in this connection on a judgment of the Supreme Court namely, Mohanlal Magan-lal Thakkar v. State of Gujarat reported in : 1968CriLJ876 . According to him, the aforesaid judgment of the Supreme Court makes a departure from the earlier cases. We are, however, unable to agree with Mr. Banerjee in this regard.

4. In the case of Mohanlal Magan-lal Thakkar, : 1968CriLJ876 a Magistrate ordered, after an enquiry under Section 476, Criminal P. C., that a complaint case be filed against a person in respect of offences under Sections 205, 467 and 468 read with Section 114, I. P. C. In appeal the Additional Sessions Judge held that the complaint was competent only in respect of offence under Section 205 read with Section 114, I. P. C. The High Court dismissed the revisional Section against an order of the Court of Section. The Supreme Court held that the order passed was a final one within the meaning of Article 134(1)(c) of the Constitution since the controversy between the parties whether the complaint was competent in respect of offences under Sections 467 and 468 read with Section 114, I. P. C. was disposed of by the order of dismissal and the proceedings regarding that question was finally decided. Mr. Banerjee relied on a portion of the judgment on that case at page 738 paragraph 11 where it was observed that the finality of the order was not to be judged by correlating that order with the controversy in the complaint namely, whether the appellant had committed offence chargedagainst him therein. But it may be noted that the said decision of the Supreme Court was by a majority. Two of the Judges viz. Bachwat and Mitter, JJ. dissented from the majority judgment. Moreover, in the case of Tarapore and Co., Madras v. Tractors Export reported in : [1969]2SCR699 it was specifically held with reference to earlier judgments that :

'There is, therefore, abundant authority in support of the view that an order is final within the meaning of Article 133 of the Constitution, under Section 109, Code of Civil Procedure or Section 205 of the Government of India Act, 1935, if it amounts to final decision on the rights of the parties in dispute in the suit or proceeding; if after the order is made the suit or proceedings still remains to be tried, and the rights in dispute have to be determined, the order is interlocutory.'

Referring to the case of Mohanlal Thakkar v. State of Gujarat the Supreme Court observed that there was nothing in the said judgment which supports the contention that this Court departed from the principle of the earlier decisions or suggested a different test for determining the finality of orders. The Court held unambiguously

'In our judgment Mohanlal Thakker's case reported in : 1968CriLJ876 makes no departure from the earlier judgments of the Judicial Committee, the Federal Court and this Court.'

We are therefore, unable to accept the validity of Mr. Banerjee's submissions in this respect. Even after the order we passed the proceedings still remain to be tried and the rights in disputes can by no means be said to be determined. The order, therefore, must be held to be an interlocutory one.

5. In that view of the matter the application must fail. The same is dismissed. Liberty is granted to take back the certified copy of the judgment.

6. This judgment will govern the other cases, namely, Cri. Revns. 272, 273, 275 and 276 of 1975.

Chanda, J.

7. I agree.


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