1. This is a Rule calling upon the District Magistrate of Nadia to show cause why the proceedings instituted against the petitioner under the provisions of the Income Tax Act, 1922, should not be quashed on the ground that the said proceedings had not been instituted under proper sanction, as the District Magistrate and Collector is not the Assistant Commissioner of Income Tax in respect of assessment of incomes exceeding Rs. 20,000 and, secondly, why the order of the Trying Magistrate dated the 28th February 1923 revoking the concession of appearing by a Pleader under Section 205 of the Code of Criminal Procedure should not be set aside.
2. As regards the first ground, Mr. Dasarathi Sanyal, who appears on behalf of the petitioners, states that he does not wish to press the same. The Rule will, therefore stand discharged so far as the first ground is concerned.
3. As regards the second ground, the facts are as follows:--The petitioner before us was served with a notice on the 12th December 1922, by the Sub-Divisional Officer of Meherpur, in his capacity as an Income Tax Officer, requiring the petitioner to submit a return of his income within seven days. The petitioner, it appears, thereupon raised a question as to whether his separate income should or should not be included in the total income of the undivided joint Hindu family of which he was a member. Certain correspondence ensued between the petitioner and the said Sub-Divisional Officer in his capacity as an Income Tax Officer and, eventually, on the 11th February 1923, the Sub-Divisional Officer applied to the District Magistrate in the latter's capacity as an Assistant Commissioner of Income Tax for sanction to prosecute the petitioner under Section 51 (e) of the Income Tax Act, for having failed without reasonable cause or excuse to furnish in due time a return which had been called for from him under Section 22 of the Act.
4. The District Magistrate of Nadia granted sanction for prosecution of the petitioner on the 15th February 1923. On the 16th February 1923, the Sub-Divisional Officer in his capacity as an Income Tax Officer purported to make a report to himself as the Sub-Divisional Magistrate, with a request for issue of a process against the petitioner and on the same date the Sub-Divisional Officer took cognizance of the case and summoned the petitioner to appear before him on the 26th February 1923; on the 27th February 1923 the petitioner appeared before the Sub-Divisional Officer through a Pleader and prayed for exemption from personal attendance and for permission to appear through a Pleader. The prayer was granted, by the Sub-Divisional Officer and on the case being put up before him on the 28th February 1923, the Sub-Divisional Officer took the statement of the Pleader, wherein it was stated that the petitioner was not legally bound to submit a return and that the learned Sub-Divisional Officer had no jurisdiction to try the petitioner. Thereupon the Sub-Divisional Officer recorded the following Order in the order-sheet:--'He (the petitioner) further objects to trial by me. I have no objection to give the accused option to have the case tried elsewhere but I am afraid his attitude shows that he is bent on delaying the ends of justice anyhow. I cannot quash the proceedings at this stage on the objection taken by the accused without entering into the merits of the case. Before, however, writing up to the District Magistrate for transfer of the case from my file, I must enforce the attendance of the accused, so I revoke the concession granted under Section 205 (2) of the Code of Criminal Procedure and order the issue of warrant against him with bail of Rs. 200; fixed 6th March 1923.'
5. This order of the Sub-Divisional Officer is challenged by the petitioner on the ground that the discretion vested in the Sub-Divisional Officer under Section 205 of the Code of Criminal Procedure was exercised wrongly and unfairly, having regard to the facts appearing on the record. We have gone through the record and while we are reluctant to say anything which may have the effect of limiting the discretion given to Magistrates under Section 205 of the Code of Criminal Procedure, we think, in the circumstances of this particular case, the Sub-Divisional Officer would have been well advised if he had not revoked the concession which he had previously extended to the petitioner of allowing him to appear by a Pleader. We think it was wholly unnecessary to order the issue of a warrant against the petitioner and in that view of the matter we must set aside the order of the Sub-Divisional Officer, requiring the personal attendance of the accused before him.
6. We gather from the record that the case against the petitioner will come on for trial before a Magistrate other than the Sub-Divisional Officer. We desire to observe that the order that we have just made will not be understood to limit in any way the discretion vested, under Section 205 of the Code of Criminal Procedure in the Magistrate before whom the case, will eventually come on for trial.
7. The Rule, therefore, is made absolute in the manner indicated above on the second ground.