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There was thus no option to go to fair value or market price at all. Ratio |
I do not think that we should supersede the arbitration agreement under s.19. Ratio |
No circumstance was made out for such a course. Ratio |
I would have directed a remit to the arbitrator under section 16 of the but my brethren take a different view of the matter and I leave the matter there. Ratio |
The contention of the appellants on the question of juris diction decided against them must fail and I agree that the appeal should be dismissed with costs. Ratio |
Appeal dismissed. RPC |
minal Appeal No. 141 of 1962. FAC |
Appeal from the judgment and order dated January 30, 1962, of the Bombay High Court in Criminal Revision Application No. 1142 of 1960. FAC |
S.V. Gupte, Additional Solicitor General, J. B. Dada chanji, O. C. Mathur and Ravinder Narain, for the appellant. FAC |
702 section K. Kapur and R. H. Dhebar., for respondent No. 1. FAC |
section T. Desai, J. L. Jain and V. J. Merchant, for respondent No. 2. FAC |
February 7, 1964. FAC |
The Judgment of Gajendragadkar C.J., Wanchoo and Rajagopala Ayyangar JJ. was delivered by Gajendragadkar C.J. FAC |
The dissenting opinion of Sarkar and Das Gupta JJ. was delivered by Das Gupta J. GAJENDRAGADKAR C.J. FAC |
The short question of law which arises for our decision in the present appeal is whether the proceeding before an Income tax Officer under section 37 of the Indian Income tax Act, 1922 (No. XI of 1922) (hereinafter called the Act) can be said to be a proceeding in any court within the meaning of section 195(1)(b) of th... |
This question arises in this way. Ratio |
The appellant Lalji Haridas and respondent No. 2 Mulii Maniial Kamdar are businessmen and they carry oil their business in Jamnagar and Bombay respectively. FAC |
They have known each other for several years past in the course of their ordinary business activities. FAC |
In the income tax assessment proceedings of the appellant for the assessment years 1949 50 and 1950 51, respondent No. 2 gave evidence on oath before the Income tax Officer, Ward A, Jamnagar on the 4th December, 1958. FAC |
In his evidence he denied that he had a son named Nihal Chand and that he had done any business in the name of M/s. Nihal Chand & Co. at Jamnagar. FAC |
According to the appellant, the said statements were false to the knowledge of respondent No. 2 and were made by him to mislead the Income tax Officer and to avoid the incidence of income tax on himself. FAC |
As a result of the said false statements, the appellant was heavily taxed. FAC |
On the 24th November, 1959, the appellant filed a criminal complaint against respondent No. 2 under section 193 of the Indian Penal Code (No. 452/S of 1959) in the Court of the Presidency Magistrate, 19th Court, Esplanades, Bombay. FAC |
At the hearing of the said complaint, respondent No. 2 raised a preliminary objection that the learned Magistrate could not take cognizance of the said complaint, because the 703 proceedings in which he was alleged to have made a false statement on oath were proceedings before a Court within the meaning of section 195 ... |
The learned Presidency Magistrate held that the Income tax Officer was not a Court within the meaning of section 195(1) (b), Cr.P.C., and so, he rejected the preliminary objection raised by respondent No. 2. RLC |
Against the said decision of the Presidency Magistrate, respondent No. 2 preferred a Criminal Revision Application (No. 1142 of 1960) before the Bombay High Court. FAC |
The State of Maharashtra was impleaded as respondent No. 1 to the said Revision Application. FAC |
A Division Bench of the said High Court reversed the conclusion of the Presidency Magistrate and held that the Income tax Officer was a Court within the meaning of section 195(1) (b), Cr.P.C., and so, it upheld the preliminary objection raised by respondent No. 2. RLC |
In the result, the complaint filed by the appellant was ordered to be dismissed. RLC |
The appellant then applied for and obtained a certificate from the Bombay High Court under article 134(1) (c) of the Constitution and it is with the said certificate that he has brought the present appeal before us. FAC |
That is how the narrow question which arises for our decision in the present appeal is whether the proceedings before an Income tax Officer are proceedings in any Court under section 195(1)(b), Cr.P.C. Ratio |
The question thus raised is undoubtedly a short one, but its decision is not easy, because the arguments urged in support of the two respective constructions are fairly balanced and the task of preferring one construction to the other presents some difficulty. Ratio |
The proceedings before the Income tax Officer during which, according to the appellant, respondent No. 2 made a false statement on oath, were held by the Income tax Officer under section 37 of the Act. Ratio |
Section 37(1) deals with the powers of Income tax authorities and provides, inter alia, that the Income tax Officer shall, for the purposes of the Act have the same powers as are vested in a Court under the Code of Civil Procedure, 1908 (No. V of 1908), when trying a suit in 704 respect of the matters specified by clau... |
Section 37(2) confers upon the Income tax Officer certain additional powers which can be exercised subject to any rules made in that behalf, provided the said Officer is specially authorised by the Commissioner in that behalf, and in exercising these powers, the provisions of the Code of Criminal Procedure 1898 relatin... |
Section 37(3) deals with the question of impounding and retaining any books of account or other documents. Ratio |
That takes us to section 37(4) which is relevant for our purpose; this section provides that any proceeding before any authority referred to in this section shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code. Ratio |
It is thus clear that while the Income tax Officer exercises his powers under section 37(1), (2) and (3) the proceedings held by him arc judicial proceedings for the purposes of the three sections of the Indian Penal Code mentioned in sub section (4). Ratio |
Therefore, the question as to whether the false statement alleged to have been made by respondent No. 2 was made by him at any stage of a judicial proceeding within the meaning of section 193 I.P.C., must be answered in the affirmative. Ratio |
That is the plain effect of section 37(4) of the Act. Ratio |
Section 193 of the Indian Penal Code with which we are directly concerned in the present appeal provides for punishment for intentionally giving false evidence. Ratio |
It consists of two parts; the first part deals, inter alia, with false evidence intentionally given in any stage of a judicial proceeding, and prescribes that the person found guilty of having given such false evidence in a judicial proceeding shall be punished with imprisonment of either description for a term which m... |
In other words, if the false evidence has been intentionally given in any judicial proceeding, the sentence awardable is higher than that where false evidence is intentionally given in proceedings which are not judicial. Ratio |
There are three explanations to section 193. Ratio |
Expln.I provides that a trial before a Court martial is a judicial proceeding; expln.2 lays down that an investi 705 gation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice; this explanation... |
Under expln. 3, an investigation directed by a Court ,of Justice according to law, and conducted under the authority of a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice. STA |
This explanation covers enquiries before officers deputed by Courts of Justice to ascertain, for instance, on the spot the boundaries of land. Ratio |
It would thus be seen that having provided for a higher sentence in regard to the offence of giving false evidence in any stage of a judicial proceeding, the three explanations of section 193 include within the expression "judicial proceeding" certain proceedings which on a strict construction of the said expression ma... |
For the purpose of the present appeal, however, the only point to notice at this stage is that section 37(4) of the Act makes a proceeding before an Income tax Officer, held under the said section, a judicial proceeding for the purposes of section 193, I.P.C. and that means that if an offence of giving false evidence i... |
That takes us to section 195 of the Code of Criminal Procedure. Ratio |
It is well known that section 195 provides for an ex ception to the ordinary rule that any person can make a complaint in respect of the commission of an offence triable under the Cr. P. C. Section 4(h) of this Code defines a "complaint" as meaning the allegation made orally or in writing to a Magistrate, with a view t... |
This definition shows that any person can make a complaint in respect of the commission of an offence. Ratio |
Section 190 requires that the Magistrate to whom a complaint has been made should take cognizance of the said complaint, subject to the provisions of the said section. STA |
Thus, the general rule is that any person can make a complaint, and section 195 provides for an exception. STA |
Section 195(1) 134 159 S.C. 45 706 (b)with which we are concerned, provides that no Court shall take cognizance of any offence punishable under the sections therein mentioned, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except the complaint in writing of such ... |
The effect of these provisions is that if an offence is alleged to have been committed either under section 193 or section 228 I.P.C., and it appears that the said offence was committed in relation to any proceeding in any Court, it is only if the said Court, or the Court to which it is subordinate, makes a complaint i... |
A person cannot make a complaint in respect of the alleged commission of any of the offences specified in section 195(1)(b); that is its plain effect. Ratio |
Section 195(2) which was added in 1923 when the earlier section 195 was substantially amended, provides that in clauses (b) and (c) of sub section (1) the term "Court" in cludes a Civil, Revenue or Criminal Court, but it does not include a Registrar or Sub Registrar under the Indian Regis tration Act, 1877. Ratio |
It is unnecessary to deal with the effect of this provision, because, as will presently appear we do not propose to base our decision on the ground that the Income tax Officer is a Revenue Court under this sub section. Ratio |
The only point of interest to which we may incidentally refer is that this sub section gives an inclusive, though not an exhaustive, definition and takes within its purview not only Civil and Criminal Courts, but also Revenue Courts, while excluding a Registrar or Sub Registrar under the Indian Registration Act. Ratio |
In dealing with the question which has been raised in the present appeal what we are required to determine is whether a proceeding before an Income tax Officer which by virtue of the operation of s.37(4) of the Act, must be held to be a judicial proceeding under section 193, I.P.C. is a proceeding in any Court under se... |
P. C. Section 193 makes a dis tinction between offences committed in any judicial proceed ing and those committed in proceedings other than judicial proceedings, whereas section 195(1)(b), Cr. P. C. does not refer to judicial proceedings as such, but mentions proceedings in 707 any Court. Ratio |
That is why the controversy between the parties in the present appeal lies within a very narrow compass. Ratio |
Can it be said that the proceeding which is a judicial proceeding under section 193, I.P.C., must be held to be a proceeding in any Court under section 195(1)(b), Cr. P. C.? It is on this aspect of the dispute that the arguments on both sides are fairly balanced. Ratio |
In dealing with this question, it is unnecessary to consider what would have been the position of the Income tax Officer acting under section 37(1), (2) and (3), and what would have been the character of the proceedings taken before him if sub section (4) had not been enacted. Ratio |
In Jagannath Prasad vs The State of Uttar Pradesh(1), it has been held by this Court that the Sales tax Officer functioning under the U.P. Sales Tax Act, 1948 (No. 15 of 1948) was not a Court within the meaning of section 195, Cr.P.C., and so, it was not necessary for him to make a complaint for the prosecution of any ... |
This decision would tend to indicate that in the absence of section 37(4) it would have become necessary to hold that the Income tax Officer acting under section 37(1), (2) and (3), would not be a Court under section 195, Cr. P.C., and in that sense the provisions of section 195 could not have been attracted. Ratio |
This position is not disputed by Mr. Desai who appears for respondent No. 2. Ratio |
He, however, contends that the provisions of section 37(4) which have been inserted in the Act in 1956 make all the difference, and according to him, this sub section was added in order to make section 195 (1) (b), Cr. P. C., applicable to the proceedings before the Income tax Officer. ARG |
On the other hand, the Additional Solicitor General has strenuously argued that the purpose which the legislature had in mind in inserting sub section (4) in section 37 was merely to make the proceedings before the Income tax Officer judicial proceedings within the meaning of section 193, I.P.C., and not to make sectio... |
If the intention of the legislature had been to take the proceedings before the Income tax Officer within the mischief of the said section of the Cr. Ratio |
P.C., the legislature would have expressly said so in terms. Ratio |
The (1) [1953]2 S.C.R. 850 708 omission to refer to the relevant provision of the Cr.P.C. in section 37(4) is not accidental, but deliberate, and so, though the proceeding before the Income tax Officer may be and has to be regarded as a judicial proceeding under section 193, I.P.C., it cannot be said to be a proceeding... |
In support of his argument, the Additional Solicitor General has referred us to several statutes where the legislative intention to extend the provisions of section 195, Cr. P.C., to specific proceedings has been carried out by making an express provision in that behalf. Ratio |
Section 23 of the Work men 's Compensation Act, 1923 (No. 8 of 1923) provides that the Commissioner shall have all the powers of a Civil Court for the purposes therein indicated, and by an amendment made in 1929, it further lays down that the Commissioner shall be deemed to be a Civil Court for all the purposes of sect... |
The argument is that where the legislature wanted to extend the provisions of section 195, Cr.P.C. to the proceedings before the Commissioner held under the Workmen 's Compensation Act, it thought it necessary to make a specific and express provision in that behalf. Ratio |
A similar provision is contained in section 18 of the (No. 4 of 1936). Ratio |
In the (No. 14 of 1947), the position is similar to that in the case of the Workmen 's Compensation Act; section 11(4) confers on the authorities therein specified powers as are vested in a Civil Court in respect of the matter mentioned therein. Ratio |
In 1950, sub section (8) was added to section II by which it was provided that every Labour Court, Tribunal or National Tribunal shall be deemed to be Civil Court for the purposes of sections 480 and 482 of the Code of Criminal Procedure. Ratio |
This scheme also shows, says the Additional Solicitor General, that where the legislature wants to make any Tribunal or authority a Court, it uses express and appropriate language in that behalf. Ratio |
Section 45 of the (No. 31 of 1950) likewise confers powers of a Civil Court on the Custodian and expressly adds that the proceedings before him shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code, and the Custodian shall be deemed 709 to be a Court within the m... |
The same provision is made by section 17 of the (Act 64 of 1951), as well as by section 26 of the (No. 44 of 1954). Ratio |
On the other hand, section 51 of the ministrator General 's Act, 1913 (No. 3 of 1913) provides that whoever, during any examination authorised by this Act, makes a false statement on oath knowingly, he shall be deemed to have intentionally given false evidence in a stage of a judicial proceeding The argument is that in... |
The same comment has been made on the provisions of section 171A(4) of the (No. 8 of 1878). Ratio |
Thus presented, the argument is no doubt attractive and cannot be rejected as without any substance. Ratio |
The expression "judicial proceeding" is not defined in the Indian Penal Code, but we have the definition of the said expression under section, 4(m) of the Cr.Procedure Code. Ratio |
Section 4(m) provides that "judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath. STA |
The expression "Court" is not defined either by the Cr.P.C. or the I.P.C. though 'Court of Justice ' is defined by section 20 of the latter Code as denoting a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judg... |
Section 3 of the Evidence Act defines a "Court" as including all Judges and Magistrates and all persons except the Arbitrators legally authorised to take evidence. STA |
Prima facie, there is some force in the conten tion that it would not be reasonable to predicate about every ,judicial proceeding that it is a proceeding before a Court, and so, it is open to the appellant to urge that though the proceeding before an Income tax Officer may be a judicial 710 proceeding under section 193... |
It is somewhat remarkable that though section 193, I.P.C., refers to a judicial proceeding, section 195, Cr.P.C. refers to a proceeding in any Court; it does not say a judicial proceeding in any Court. Ratio |
Mr. Desai contends that reading section 193 I.P.C. and section 195(1)(b) Cr. P.C., together. ARG |
it would not be unreasonable to hold that proceedings which are judicial under the former, should be taken to be proceedings in any Court under the latter. Ratio |
The whole basis of providing for a higher sentence in regard to offences committed at any stage of a judicial proceeding appears to be that the legislature took the view that the said offences were more serious in character, and so, it distinguished the said offences from similar offences committed at any stage of othe... |
The argument is that while providing for a higher sentence in respect of this more serious class of offences committed at any stage of judicial proceedings, the legislature intended that there should be a safeguard in respect of complaint as regards the said offences and that safeguard is provided by section 195(1)(b),... |
In other words, an offence which is treated as more serious by the first paragraph of section 193, I.P.C. because it is an offence committed during the course of a judicial proceeding should be held to be an offence committed in any proceeding in any Court for the purpose of section 195(1)(b) Cr. Ratio |
On this argument, it is necessary to consider whether the Income tax Officer is a Court or not, for, in substance, the contention is that as soon as section 37(4) of the Act was enacted, the proceedings before an Income tax Officer became judicial proceedings for the purpose of section 193, I.P.C. and since they are cl... |
In our opinion, there is considerable force in this argument, and, on the whole. Ratio |
we are inclined to prefer the construction suggested by Mr. Desai to that pressed before us by the learned Additional Solicitor General. Ratio |
It is true, the Additional Solicitor General has mainly relied upon the relevant provisions of several statutes in support of his construction and in so far as it appears that 711 certain provisions in some of the said statutes in terms extend the application of section 195, Cr.P.C. to the proceedings to which they rel... |
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