Full Judgment Text
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PETITIONER:
KAPUR CHAND POKHRAJ
Vs.
RESPONDENT:
THE STATE OF BOMBAY
DATE OF JUDGMENT:
28/03/1958
BENCH:
ACT:
Criminal trial-Repeal of Penal Statute-Saving of ’Liability
incurred’, scope of-Sanction by authority empowered under
repealing statute-If valid for prosecution for offence under
repealed statute--Sentence-Whether plea of guilty a
consideration for awarding light sentence-Enhancement of
sentence-Bombay Sales Tax Act, 1946 (Bom V of 1946), ss. 2,
3 and 24, Bombay Sales Tax Act, 1953 (Bom. III of 1953),
ss. 2, 3, 36, 37, 48 and 49-Bombay Sales Tax Ordinance III
of 1952, SS. 2, 3, 36 and 37.
HEADNOTE:
The appellant was registered under the Bombay Sales Tax Act,
1946. He maintained double sets of account books and
knowingly furnished, for the period September 30, 1950 to
March 31, 1951, false returns to the Sales Tax Officer and
thereby committed an offence under S. 24(1)(b) of the Act.
Under the Act sanction of the Collector was necessary before
cognizance of the offence could be taken by a Court. The
I946 Act was repealed by the Bombay Sales Tax Act, 1952, but
the 1952 Act was declared ultra vires by the Bombay High
Court. Thereupon the Bombay Sales Tax Ordinance 11 Of 1952
was promulgated which provided that the 1946 Act was to be
deemed to have been in existence up to November 1, 1952.
This was followed by Ordinance 111 of 1952 which further
extended the life of the 1946 Act. Thereafter, the Bombay
Sales Tax Act, 1953 was passed which repealed both the 1946
Act and Ordinance III of 1952. The 1953 Act made provision
for an offence similar to that covered by S. 24(1)(b) of the
Act, prescribed a similar procedure for prosecuting persons
committing the said offence and saved liabilities incurred
under the 1946 Act. During the period when Ordinance III of
1952 was in force the State Government issued a notification
appointing the Additional Collector to be a Collector under
the Ordinance, and the Additional Collector granted sanction
for the prosecution of the appellant. The appellant was
tried by the Presidency Magistrate before whom he pleaded
guilty. The Magistrate accepted the plea, convicted him
under S. 24(1)(b) of the 1946 Act and sentenced him to a
fine of Rs. 200, in default to suffer one month’s rigorous
imprisonment. The State preferred a revision to the High
Court for enhancement of the sentence. The appellant
contended that by the repeal of the 1946 Act the offence was
effaced and that the prosecution was defective inasmuch as
sanction was given by the Additional Collector and not by
the Collector as required by the 1946 Act. The High Court
repelled both these contentions and enhanced the sentence to
rigorous imprisonment for one month in addition to the fine
already imposed
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Held, that the offence under s. 24(1)(b) of the 1946 Act was
covered by the saving clause in S. 48 of 953 Act and the
appellant could be convicted of that offence. The saving by
s. 48 of the 1953 Act of " any liability incurred " under
the 1946 Act saved both civil and criminal liability.
Held, that the sanction given by the Additional Collector
was a valid sanction for the prosecution of the appellant.
The notification issued under Ordinance III of 1952
appointing the Additional Collector as Collector must be
deemed to have been made in exercise of the relevant power
in respect of the offence saved by the Ordinance. Further,
the notification must be deemed to have continued in force
under the 1953 Act by reason of s. 49(2) of that Act.
Sanction pertains to the domain of procedure and the
procedure prescribed under the new 1953 Act must be followed
even in respect of offences committed under the repealed
1946 Act.
Held further, that in the circumstances of the case the High
Court was justified in enhancing the sentence. The sentence
should depend upon the gravity of the offence and not upon
the fact that the accused pleaded guilty or attempted to
defend the case. As the appellant had kept double sets of
account books, it was eminently a case in which a
substantive sentence ought to have been imposed, and the
Magistrate improperly exercised his discretion in awarding a
sentence of fine only. But the High Court was wrong in
awarding rigorous imprisonment as s. 24(1)(b) provided only
for simple imprisonment.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 34 to
36 of 1956.
Appeal by special leave from the judgment and order dated
July 1, 1955, of the Bombay High Court in Criminal Revision
Applications Nos. 351 to 353 of 1955 arising out of the
judgment and order dated November 5, 1954, of the Court of
the Presidency Magistrate 14th Court at Girgaum, Bombay in
Cases Nos. 328 to 330/P of 1954.
H. J. Umrigar and A. G. Ratnaparkhi, for the appellant.
M. S. K. Sastri and R. H. Dhebar, for the respondent.
1958. March 24. The following Judgment of the Court was
delivered by
SUBBA RAO J.-These appeals by special leave are directed
against the judgment of the High Court of
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Judicature at Bombay made in three connected Criminal
Revision applications and raise the question of the
maintainability of prosecution of a person for an offence
committed under s. 24(1)(b) of the Bombay Sales Tax Act,
1946 (Bom. V of 1946) (hereinafter referred to as the
repealed Act).
The facts that give rise to the appeals may be briefly
stated: The appellant, Sri Kapur Chand Pokhraj, was the
proprietor of Messrs. N. Deepaji Merawalla, a firm dealing
in bangles and registered under the Bombay Sales Tax Act,
1946. He did not disclose the correct turnover of his sales
to the Sales Tax Department in the three quarterly returns
furnished by him to the said Department on September 30,
1950, December 31, 1950, and March 31, 1951, respectively.
He maintained double sets of books of accounts and knowingly
furnished false returns for the said three quarters to the
Sales Tax Officer and thereby -committed an offence under s.
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24(1)(b) of the repealed Act. Under that Act, sanction of
the Collector was a condition precedent for launching of
prosecution in respect of an offence committed under s.
24(1) of the said Act. The said Act was repealed by the
Bombay Sales Tax Act, 1952 (Bom. XXIV of 1952), which was
published on October 9, 1952. On December 11, 1952, the
Bombay High Court declared the Act of 1952 ultra vires and
the State .of Bombay preferred an appeal against the
judgment of the Bombay High Court to the Supreme Court. On
December 22, 1952, the State Government, in order to get
over the dislocation caused by the Bombay judgment, issued
the Bombay Sales Tax Ordinance II of 1952, where under it
was provided that the 1946 Act was to be deemed to have been
in existence up to November 1, 1952. On December 24, 1952,
another Ordinance, Ordinance III of 1952, was promulgated
extending the life of the Act of 1946. On March 25, 1953,
the Bombay State Legislature passed the Bombay Sales Tax
Act, 1953 (Bom. III of 1953), (hereinafter referred to as
the repealing Act), repealing the Act of 1946 and the
Ordinance III of 1952. The material fact to be noticed is
that the Act III of 1953, though it repealed the earlier Act
and the Ordinance extending
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the life of that Act, made provision for an offence similar
to that covered by s. 24(1) of the repealed Act, prescribed
a similar procedure for prosecuting persons committing the
said offence and saved the liabilities incurred under the
repealed Act. During the period when the Ordinance III of
1952 was in force, the State Government issued a
notification under s. 3 of that Ordinance appointing the
Additional Collector of Bombay to be a Collector under the
said Ordinance. On July 4, 1953, i.e., after Act III of
1953 came into force, Mr. Joshi, the Additional Collector of
Bombay, granted sanction for the prosecution of the
appellant in respect of the offence committed by him under
s. 24(1)(b) of the repealed Act. After obtaining the
sanction, the appellant was prosecuted under s. 24(1)(b) of
the Bombay Sales Tax Act, 1946. Before the Presidency
Magistrate the appellant pleaded guilty to the charge. The
learned Magistrate accepted his plea and convicted him for
the offence for which he was charged and sentenced him to
pay a fine of Rs. 200, in default to suffer one month’s
rigorous imprisonment. The State of Bombay preferred a
Revision against the said Order to the High Court of
judicature at Bombay praying that the sentence imposed on
the appellant be enhanced on the ground that as the
appellant kept double sets of accounts and intentionally
furnished false information, the interest of justice
required that substantive and heavy sentence should be
imposed on him. Before the High Court, the appellant
pleaded that by the repeal of the Sales Tax Act, 1946, the
offence, if any, committed by him was effaced and that in
any view the prosecution was defective inasmuch as sanction
had been given by the Additional Collector and not by the
Collector of Sales Tax. The contentions did not find favour
with the learned Judge of the High Court. In rejecting them,
the learned Judge enhanced the sentence passed upon the
appellant to rigorous imprisonment for a period of one month
in each of the three cases in addition to the fine already
imposed by the Magistrate. He directed the substantive
sentence of imprisonment in all the three cases to be
concurrent. The appellant obtained special leave
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from this Court to prefer the above appeals against the
judgment of the High Court.
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The learned Counsel for the appellant raised before us the
same contentions which his client unsuccessfully raised
before the High Court. We shall now proceed to deal with
them seriatim.
The main argument of the learned Counsel was that the Bombay
Sales Tax Act, 1953 (Bom. III of 1953) in repealing the Act
of 1946 did not save penalties in respect of offences
committed under that Act and therefore no prosecution was
maintainable in respect of an offence committed under the
Act of 1946. A clearer conception of the argument can be
had by looking at the relevant saving provisions enacted in
Act III of 1953 and also the relevant sections of the Bombay
General Clauses Act. Section 48(2) of the Bombay Sales Tax
Act, 1953 reads:
" Notwithstanding the repeal of the said Act and the said
entries, the said repeal shall not affect or be deemed to
affect-
(i) any right, title, obligation or liability already
acquired, accrued or incurred;
(ii) any legal proceeding pending on the 1st day of
November, 1952 in respect of any right, title, obligation or
liability or anything done or suffered before the Raid date;
and any such proceeding shall be continued and disposed of,
as if this Act had not been passed;
(iii)the recovery of any tax or penalty which may have
become payable under the said Act and the said entries
before the said date; and all such taxes or penalties or
arrears thereof shall be assessed, imposed and recovered, so
far as may be, in accordance with the provisions of this
Act; ".
Section 7 of the Bombay General Clauses Act says:
" Where this Act, or any Bombay Act made after the
commencement of this Act, repeals any enactment hitherto
made or thereafter to be made, then, unless a different
intention appears, the repeal shall not-
(a) revive anything not in force or existing at the time at
which the repeal takes effect; or
(b) affect the previous operation of any enactment
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so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability
acquired, accrued or incurred under any enactment so
repealed; or
(d) affect any penalty, forfeiture or punishment incurred
in respect of any offence committed against any enactment so
repealed; or
(e) affect any investigation, legal proceeding or remedy in
respect of any such right, privilege, obligation, liability,
penalty, forfeiture or punishment as aforesaid,
and any such investigation,, legal proceeding or remedy may
be instituted, continued or enforced, and any such penalty,
forfeiture or punishment may be imposed, as if the repealing
Act had not been passed."
A comparative study of the aforesaid provisions indicates
that while under s. 7 of the Bombay General Clauses Act,
there is a specific saving of any penalty, forfeiture or
punishment incurred in respect of any offence committed
under the enactment repealed, as distinct from civil rights
and liabilities, under s. 48 of Act III of 1953, there is no
separate treatment of Civil and Criminal matters; while
under the former provisions legal proceedings are saved,
under the latter provisions legal proceedings pending on
November 1, 1952, in respect of rights acquired or
liabilities incurred under the repealed Act are saved. By
such a study of the two provisions, the argument proceeds,
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it is clear that the enactment of a specific saving clause
in the repealing Act indicates a " different intention "
excluding the operation of s. 7 of the General Clauses Act
and the omission under s. 48 of the repealing Act of a
clause similar to el. (d) of s. 7 of the General Clauses
Act, demonstrates that the liability saved excludes criminal
liability. In our view the consideration of the provisions
of s. 7 of the General Clauses Act need not detain us, for
s. 48(2)(i) of the repealing Act affords a complete answer
to the question raised. Under that clause, the repeal did
not affect any right, title or obligation or liability
already acquired, accrued or I incurred, The words liability
256
incurred " are very general and comprehensive and ordinarily
take in both civil and criminal liability. In Criminal Law
the term " liability covers every form of punishment to
which a man subjects himself -by violating the law of the
land. There is no reason why the all comprehensive word
should not carry its full import but be restricted to civil
liability alone ? The context does not compel any such
limitation. Indeed, there is no conceivable ground to
impute to the Legislature the intention to wipe out the
offences committed under the repealed Act, when it expressly
retained the same offences under the repealing Act. If
there was any justification for preserving Civil liabilities
incurred under the repealed Act, there was an equal
justification to save criminal liabilities incurred under
that repealed Act. The fact that s. 7 of the Bombay General
Clauses Act provided separately in different clauses for
Criminal and Civil liabilities, while s. 48(2) of the
repealing Act clubbed them together in one clause is not
decisive of the question raised, as, for ought we know, s.
48 might be an attempt by the Legislature at precise
drafting by omitting unnecessary words and clauses. Nor the
circumstance that a special provision is made under s. 48(2)
of the repealing Act -for pending proceedings is indicative
of any conscious departure by the Legislature from the
established practice embodied in s. 7 of the General Clauses
Act indicating an intention to save only offences under the
repealed Act in-respect of which legal proceedings were
pending on a specified date. It is more likely, as the
learned Judge of the Bombay High Court pointed out, that el.
2 was enacted to obviate the argument that once a case is
sent up the liability merges in the proceedings launched and
has to be saved specially. On a fair reading of the terms
of the saving clause in s. 48(2) of the repealing Act, we
cannot give a restricted meaning to the words" liability
incurred", especially when the scheme of the Act does not
imply that the Legislature had any intention to exclude from
the saving clause criminal liability incurred under the
repealed Act. We, therefore, hold that the liability
incurred
257
i.e. the offence committed, under the repealed Act, is
covered by the saving clause embodied in s. 48 of -the
repealing- Act. In this view it is not necessary to express
our view whether, by reason of the saving clause enacted in
s. 48 of the repealing Act, the Legislature indicated a
different intention within the meaning of s. 7 of the Bombay
General Clauses Act so as to exclude its operation in
construing the provisions of the repealing Act.
Even so, the learned Counsel contended that the appellant,
who committed the offence under the repealed Act, should be
prosecuted only with the previous sanction of the Collector
as provided by that Act, but as the sanction in the present
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case was given by the Additional Collector, the Magistrate
had no jurisdiction to take cognizance of the offence. To
appreciate this argument it would be necessary to notice the
provisions relating to sanction in the repealing Act and in
the Acts and Ordinances that preceded it.
" BOMBAY SALES TAX ACT, 1946.
" Section 24 (1)(b): Whoever-fails,without sufficient cause,
to submit any return as required by, section 10 or know-
ingly submits a false return,...............................
shall, in addition to the recovery of any tax that may be
due from him be punishable with simple imprisonment which
may extend to six months or with fine not exceeding one
thousand rupees or with both; and when the offence is a
continuing one, with a daily fine not exceeding fifty rupees
during the period of the continuance of the offence."
Section 24(2): No Court shall take cognizance of any offence
under this Act, or under the rules made thereunder, except
with the previous sanction of the Collector and no Court
inferior to that of a Magistrate of the Second Class shall
try any such offence."
" Section 2(a) : " Collector " means the Collector of Sales
Tax appointed under sub-section (1) of Section 3."
" Section 3(1) : For carrying out the purposes of
33
258
this Act, the State Government may appoint any person to be
a Collector of Sales Tax and such other persons to assist
him as the State Government thinks fit."
ORDINANCE No. II of 1952:
Under this Ordinance, Bombay Act V of 1946 and the entries
relating to the said Act in the third schedule to the Bombay
Merged States (Laws) Act, 1950 were deemed to have continued
to be in force up to and inclusive of November 1, 1952.
ORDINANCE III OF 1952:
"Section 36. Offences and Penalties: whoever
(b) fails without sufficient cause, to furnish any
return or statement as required by section 13 or 18 or
knowingly furnishes a false return or statement,...........
in addition to the recovery of any tax that may be due from
him, be punishable with simple imprisonment which may extend
to six months or with fine not exceeding two thousand rupees
or with both; and when the offence is a continuing one, with
a daily fine not exceeding one hundred rupees during the
period of the continuance of the offence."
" Section 37. Cognizance of offences. (1). No Court shall
take cognizance of any offence punishable under section 36
or under any rules made under this Ordinance except with the
previous sanction of the Collector and no Court inferior to
that of a Magistrate of the Second Class shall try any such
offence."
" Section 2(6): " Collector " means the Collector of Sales
Tax appointed under section 3."
" Section 3(1): For carrying out the purposes of this
Ordinance, the State Government may appoint any person to be
a Collector of Sales Tax, and such other persons to assist
him as the State Government thinks fit."
BOMBAY SALES TAX ACT, 1953 (Act III of 1953):
" Section 36: Whoever-
(b) fails without sufficient cause, to furnish any return
or statement as required by Section 13 or 18 or
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knowingly furnishes a false return or statement............
shall, in addition to the recovery of any tax that may be
due from him, be punishable with simple imprisonment which
may extent to six months or with fine not exceeding two
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thousand rupees or with both; and when the offence is a
continuing one, with a daily fine not exceeding one hundred
rupees during the period of the continuance of the offence."
"Section 49(2): Any appointment, notification, notice,
order, rule, regulation or form made or issued or deemed to
have been made or issued under the Ordinance hereby repealed
shall continue in force and be deemed to have been made or
issued under the provisions of this Act. in so far as such
appointment, notification, notice, order, rule, regulation
or form is not inconsistent with the provision of this Act,
unless it has been already, or until it is superseded by an
appointment, notification, notice, order, rule, regulation
or form made or issued under this Act."
THE BOMBAY SALES TAX (AMENDMENT) ACT, 1956.
(BOMBAY ACT NO. XXXIX OF 1956)
Section 3. Amendment to section 3 of Bom. III of 1953 : In
section 3 of the said Act, for sub-section (1), the
following sub-section shall be and shall be deemed ever to
have been substituted, namely:-
(1) for carrying out the purpose of this Act, the State
Government may appoint-
(a) a person to be the Collector of Sales Tax, and
(b) one or more persons to be Additional Collectors of
Sales Tax, and
(c) such other persons to assist the Collector as the State
Government thinks fit."
NOTIFICATION ISSUED BY THE STATE GOVERNMENT UNDER SECTION
(3) OF THE ORDINANCE III OF 1952:
"Government of Bombay is pleased to declare the Additional
Collector of Sales Tax, Bombay State, Bombay, as " Collector
of Sales Tax, Bombay State, Bombay " for purposes of the
Bombay Sales
260
Tax (No. 2) Ordinance, 1952 (Bombay Ordinance No. III of
1952)."
It will be seen from the aforesaid provisions that under
the Acts as well as under the Ordinances, knowingly
furnishing a false return or statement is made an offence
punishable with simple imprisonment or fine or with both.
The only difference is that under the Ordinance and the Act
of 1953, the maximum amount of fine is increased from Rs.
1,000 to Rs. 2,000. Under the Ordinance as well as under
the Acts, no Court can take cognizance of the said offence
except with the previous sanction of the Collector. The
term Collector " is defined in similar terms in the Ordi-
nance as well as in the Acts, i e., a person appointed as
,"Collector " by the State Government. The notification
issued by the State Government under Ordinance 11I of 1952,
appointing the Additional Collector as Collector of Sales
Tax must be deemed to have continued to be in force under
the Bombay Sales Tax Act, 1953, by reason of s. 49 (2) of
that Act, as it is common case that no fresh notification
was made under that Act repealing that made under that
Ordinance. Shortly stated, the Bombay Act III of 1953,
introduced the same offence and provided for the same
machinery that its predecessors contained.
On the basis of the aforesaid provisions, the argument of
the learned Counsel for the appellant is that as the State
Government appointed the Additional Collector as Collector
of Sales Tax in exercise of the power conferred on it under
the Ordinance III of 1952 and not under the power conferred
on it by the repealed Act, the sanction given by the
Additional Collector to prosecute the appellant is invalid.
The first answer to this contention is that, as the State
Government had the power to appoint any person including’ an
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Additional Collector as Collector of Sales Tax both under
the repealed Act as well as the Ordinance III of 1952, the
appointment may reasonably be construed to have been made in
exercise of the relevant power in respect of the offence
saved under the Ordinance. The second answer is more
fundamental. There is an essential distinction between an
offence and the
261
prosecution for an offence. The former forms part of the
substantive law and the latter of procedural law. An
offence is. an aggregate of acts or omissions punishable by
law while prosecution signified the procedure for obtaining
an adjudication of Court in respect of such acts or
omissions. Sanction or prior approval of an authority is
made a condition precedent to prosecute in regard to
specified offences. Prosecution without the requisite
sanction makes the entire proceeding ab initio void. It is
intended to be a safeguard against frivolous prosecutions
and also to give an opportunity to the authority concerned
to decide in the circumstances of a particular case whether
prosecution is necessary. Sanction to prosecute for an
offence is not, therefore, an ingredient of the offence, but
it really pertains to procedure. In Maxwell’s
Interpretation of Statutes, the following passage appears at
page 225:
" Although to make a law punish that which, at the time when
it was done, was not punishable, is contrary to sound
principle, a law which merely alters the procedure may, with
perfect propriety, be made applicable to past as well as
future transactions."
In the instant case when the repealing Act did not make any
change either in the offence or in the procedure prescribed
to prosecute for that offence and expressly saved the
offence committed under the repealed Act, the intention can
be legitimately imputed to the Legislature that the
procedure prescribed’ under the new Act should be followed,
even in respect of offences committed under the repealed
Act. If so, it follows that, as sanction pertains to the
domain of procedure, the sanction given by the Additional
Collector appointed by the State as Collector of Sales Tax
was valid.
Even so, it was contended that the notification appointing
the Additional Collector as Collector of Sales Tax issued
under Ordinance No. 11 of 1952 would not enure to the
prosecution launched under Act III of 1953. This argument
ignored the express provisions of s. 49 (2) of the said Act
(already extracted supra), which in clear and express terms
laid down
262
that notifications issued or orders made under the repealed
Ordinance would be deemed to have been made or issued under
the provisions of the Act and would continue to be in force
until superseded by appropriate orders or notifications
under the new Act. It was not suggested that any fresh
notification revoking that made under the Ordinance was
issued under the repealing Act. If so, it follows that the
notification issued under the Ordinance appointing the
Additional Collector as Collector of Sales Tax continued to
be in force when the said Collector gave sanction to pro-
secute the appellant. In this view it is not necessary to
consider the scope of the Bombay Sales Tax (Amendment) Act,
1956.
Lastly, a strong plea was made for reducing the sentence of
imprisonment given by the High Court to that of fine. It was
said that the Magistrate in exercise of his discretion gave
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the sentence of fine and the High Court was not justified in
enhancing the same to imprisonment without giving any
reasons which compelled them to do so. Reliance was placed
in this context on two decisions of this Court--Dalip Singh
v. State of Punjab (1) and Bed Raj v. The State of Uttar
Pradesh (2). In the former case, the Sessions Judge
convicted each of the 7 accused under s. 302, Indian Penal
Code read with s. 149, Indian Penal Code. As the fatal
injuries could not be attributed to any one of the accused,
he refrained from passing a sentence of death, but instead
he convicted them to imprisonment for life. The High Court,
without giving any reasons, changed their sentences from
transportation to death. Bose J. who delivered. the
judgment of the Court, in holding that the High Court should
not have interfered with the discretion exercised by the
Sessions Judge, made the following observation at page 156:
" But the discretion is his and if he gives reasons on which
a judicial mind could properly found, and appellate Court
should not interfere. The power to enhance a sentence from
transportation to death should very rarely be exercised and
only for the strongest
(1) [1954] S. C. R, 145.
(2) [1955] 2 S. C. R. 583.
263
possible reasons. It is not enough for an appellate Court
to say, or think, that if left to itself it would have
awarded the greater penalty because the discretion does not
belong to the appellate Court but to the trial Judge and the
only ground on which an appellate Court can interfere is
that the discretion has been improperly exercised, as for
example, where no reasons are given and none can be inferred
from the circumstances of the case, or where the facts are
so gross that no normal Judicial mind would have awarded the
lesser penalty."
In the latter case, the appellant along with another was
convicted by the Sessions Judge under s. 304 Indian Penal
Code and sentenced to three years’ rigorous imprisonment.
On appeal the High Court enhanced the sentence to ten years.
In enhancing the sentence, the learned Judges gave the
reason that the deceased was unarmed and the attack was made
with a knife and it could not be said that the appellant did
not act in a cruel or unusual manner. This Court, in
allowing the appeal on the question of sentence, made the
following observation at page 588:
" A question of a sentence is a matter of discretion and it
is well settled that when discretion has been properly
exercised along accepted judicial lines, an appellate Court
should not interfere to the detriment of an accused person
except for very strong reasons which must be disclosed on
the face of the judgment.................. In a matter of
enhancement there should not be interference when the
sentence passed imposes substantial punishment.
Interference is only called for when it is manifestly
inadequate."
These observations are entitled to great weight. But it is
impossible to lay down a hard and fast rule, for each case
must depend upon its own facts. Whether in a given case
there was proper exercise of judicial discretion by the
trial Judge depends upon the circumstances of that case. In
the present case, the appellant kept double sets of account
books and submitted false returns for successive quarters,
omitting from the turn-over shown by him in the returns
substantial amounts. Under s. 24(1) of the Act,
infringement of
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the provisions of the Act is made punishable. The offences
under that section are of different degrees of moral
turpitude. They range from a mere infringement of a rule to
conscious and deliberate making of false returns. For all
the offences, the section fixes the maximum punishment of
simple imprisonment which may extend to six months. The
magistrate, who tries the offenders under that section, is
given a wide discretion to could the punishment in such a
way as to make it commensurate with the nature of the
offence committed. Though the appellant adopted a syste-
matic scheme to defraud the State by keeping double sets of
account books and therefore deserved deterrent punishment,
the learned Magistrate, presumably because the appellant
pleaded guilty, without giving any reasons, gave him the
lenient punishment of fine of Rs. 200. It is obvious that
the sentence should depend upon the gravity of the offence
committed and not upon the fact that the accused pleaded
guilty or made an attempt to defend the case. In the
circumstances the High Court was certainly justified in
enhancing the sentence from fine to- imprisonment and fine
and it had given good reasons for doing so. The High Court
thought and, in our view, rightly that as the appellant had
kept double sets of account books, it was eminently a case
in which a substantive sentence ought to have been imposed.
The Magistrate has improperly exercised his discretion
within the meaning of the aforesaid observations of this
Court and therefore, the High Court was certainly within its
right to enhance the sentence.
But the High Court committed a mistake in awarding a
sentence of rigorous imprisonment for a period of one month,
which it is not entitled to do under the provisions of s.
24(1) of the Act. Under that section the Court had
jurisdiction only to give a maximum sentence of simple
imprisonment extending to 6 months but had no power to
impose a sentence of rigorous imprisonment. This mistake,
if any, should go to the benefit of the appellant, for the
High Court might have imposed a sentence of longer period of
simple imprisonment if it had realised that it had, no power
to sentence
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the appellant to rigorous imprisonment. Be it as it may, as
the High Court had no power to impose a sentence of rigorous
imprisonment we change the sentence from rigorous
imprisonment to simple imprisonment for a period of one
month in each case. With this modification the appeals are
dismissed.
Appeals dismissed.