Dismissed

Kapur Chand Pokhraj v. the State of Bombay

Supreme Court24 Mar 19581958 INSC 28 · [1959] 1 S.C.R. 2501958 INSC 28

Case brief

AI extract

What is this about?

Proprietor convicted under s. 24(1)(b) of the Bombay Sales Tax Act, 1946 for furnishing false returns with double account books challenged prosecution after repeal. The Supreme Court held the saving clause in s. 48 of the 1953 Act covered criminal liability and the Additional Collector's sanction was valid, upheld enhancement but converted rigorous to simple imprisonment.

What did the court decide?

Appeals dismissed with sentence modified from one month's rigorous imprisonment to one month's simple imprisonment in each case.

Kapur Chand Pokhraj versus the State of Bombay — Criminal Trial and Appeal | Supreme Court (1959)

¶1

SUPREME COURT REPORa:'S [1959]

250

KAPUR CHAND POKHRAJ

ldarch a4~

THE STATE OF BOMBAY

(B. P. SINHA, 0 JAFER IMAM and SuBBA RAO, JJ.)

¶8

I
•

Criminaltrial-RepealofPenalStatute-Savingof'Liability
incurred',scopeof-Sanctionbyauthorityempoweredunder repealing
statute-Ifvalid for prosecution foroffenceunderrepealed_statute~
Sentence-Whether plea of guilty a consideration for awarding light
sentence-Enhancementofsentence-Bo:vibay Sales Tax Act, x946
(Bom. V of x946),ss.2,3 and24,Bol!ibaySales Tax Act, I953
(Bom.IIIof x953),_ss.2,3,36, 37, 48 and49-BombaySalesTax
_OrdinanceIII of x952,_ss.2,3,3.6and 37.
The appellant was registered undertheBombay SalesTax
Act, 1946.
He maintained double sets of account booksand
knowingly furnished, fortheperiod September 30, 1950toMarch
3r, 1951, false returns totheSalesTaxOfficerandthereby com-
mitted an offence unders.24(1)(b) oftheAct. Underti11lAct
sanctionoftheCollector was necessary before cognizanceofthe
offence could be taken by a Court. The 1946 Act was repealed
bytheBombay SalesTaxAct, 1952,butthe1952 Act was
declared_ultra vires_bythe Bombay High Court. Thereuponthe
Bombay SalesTaxOrdinanceIIof 1952 was promulgated which
providedthatthe1946 Act was to he deemedtohave beenin
existenceuptoNovemberl,1952. This was followedbyOrdi-
nanceIIIof1952 whichfurtherextendedthelife ofthe1946
, Act. Thereafter,theBombay SalesTaxAct, 1953 was passed
which repealedboththe1946 Act and OrdinanceIIIof1952.The
1953 Act made provision for an offence similartothatcovered
by s. 24(1)(b)oftheAct, prescribed a similar procedure for
prosecuting persons committing the.aidoffence and saved liabili-
ties incurred underthe1946 Act. Duringtheperiod when Ordi-
nanceIIIof1952 was in forcetheStateGovernment issued a
notification appointingtheAdditional Collector to be a Collector
under the Ordinance, andtheAdditional Collecter granted
sanction fortheprosecutionoftheappellant.
The appel-
lantwas tried bythePresidency Magistrate before whom he
pleaded guilty. The Magistrate acceptedtheplea, convicted him
unders.24(1)(b)ofthe1946 Act and sentenced himtoa fineof"
Rs.200,indefault to suffer one month's rigorous imprisonment.
The State prefefred a revision totheHigh Court for enhancement
ofthesentence. The appellant contendedthatbythe repeal of
the1946 Acttheoffence was effaced.andthatthe prosecution
was defective inasmuchassanction was givenbythe Additional
Collectorandnotbythe Collector as requiredbythe 1946 Act.
The High Court repelled both these contentions and enhanredthe
sentence to rigorous imprisonment for one month in additionto
the fine already imposed ;

•

•

•

251

S~PREME COURT REPORTS

¶16

S.C;R.

¶17

H.eld, that the offence under s. 24(1)(b) of the 1946 Act was covered by the saving clause, in s. 48 of 1953 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.

¶18

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 I952 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. Jiurther, the notification must be deemed to have continued in force under the '!953 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.

¶19

Kapur Chand Pokhraj.

¶20

v. The State of Bombay

¶21

Held further, that in the circumstances of the case the High Court was justified in enhancing the sentence. The sentence shoul@l. 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 s.entence 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. ass. i4(1)(b) provided only for simple imprisonment.

¶22

CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 34 to 36,<?f 1956.

¶23

Appeal by special leave from the judgment and order dated July I, 1955, of the Bombay H;igh 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 Cas@s Nos. 328 to 330/P of 1954.

¶24

¶25

•

¶26

,, H.J. Umrigar and A.G. Ratnaparkhi, for the appeh l&nt. · .

¶27

¶28

M. S. K. Sastri and R, H. Dhebar, f;r the respondent.

¶29

March 24. The following Judgment of the Court was delivered by ·

¶30

. Su~BA l{Ao J.-These appeals by special leave are Subba Rao J. directed againsp the judgment of the High Court of

¶31

•

¶32

•

¶33

252 SUPREME COURT REPORT~ [1959]

¶34

,. .

¶35

•

¶36

' Judicature at Bombay made in three connected Criminal Revision applications and raise the question of the Kapur Chand Pokhraj ~aintainability of prosecution of a person for an v. offence committed under s. 24(l)(b) of the Bombay The State of Sales Tax Act, 1946 (Born. V of 1946) (hereinafter Bombay referred to as the repealed Act). The facts that give rise to the appeals may be briefl:v. Subba Rao]. 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 ~urnished 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 knowipgly furnished false returns for the said three quarters to the Sales Tax Officer and thereby committed an offence under s. 24(l)(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 (.Born. XXIV of 1952), which was published on October 9, 1952. On December 11, 1952, the Bombay High, Court declared the Act of 1952 uUra 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 I get over the dislocation caused by the Bombay judg• ment, issued the Bombay Sales Tax Ordinance II of 1952, whereunder 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, OJ;llinance III of J 952, 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 Ordiirancc extending • •

¶37

~UPREME COURT REPORTS 253

S.C.R.

. •'

•

.. )

the life of that Act, made provision for an offence similar to that covered bys. 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. i.'-, 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(l)(b) of the repealed Act. After obtaining the sanction, the appellant was prosecuted under s. 24(l)(b) of ihe 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. B!lfore 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 lea{'.11ed 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

¶45

Kapur Chand Pokh(aj v.

¶46

The State of Bombay

Subba Rao].

•

254

SUPREME COURT REPORTS. [1959]

¶53

¶54

from this Court to prefer the above appeals against the judgment of the High Court. Kapur Chand Pokhraj The learned Counsel for the appellant raised before "· us the same contentions which his client unsuccessfully The State of raised before the High Court. 'Vo shall now proceed Bomba,y to deal with them seriatim. The main argum<.mt of the learned Counsel was that Subba Rao]. the Bombay Sales Tax Act, 1953 (Born. III of 1953) in· repealing the Act of 1946 did not save penalties in respect of offences committed ooder that Act and therefore no prosecution ws maintainable in respct 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 aliio 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 011 the 1st day of Noyember, 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 befora 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 &11y enactment

•

•

'M..

" "'

s.c.R. SUPREME ·coURT REPORTS 255

¶61

so repealed or anything dv.ly done or suffered thereunder; or .

¶62

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or ·

¶63

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence co.mmitted against •any enactment so repealed; or

¶64

x958

¶65

Kapur Ch1ind Pokhraj v. The State of Bombay

¶66

Subba Rao J.

¶67

(e) affect any investigation, legal proceeding or remedy in respect o{ 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 inay 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 mider the former provisions legal proceedings are saved, under the latter provisions legal proceedings pending on November I, 1952, in respect of rights acquired or liabilities incurred under tlre repealed Act are saved. By such a study of the two provisions, the arguinerit proceeds, it is clear that the enactment of a specific saving clause in the repealing Act indicates a "different intention " excludingfthe operation of s. 7 Of the General Clauses Act and the omission under s. 48 of the repealing Act of a clause similar to cl. (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 · qliMtion raised. Under that clause, the repeal did not ·affect any right, title or obligation or liability already •acquired, acocued or incurred. The words " liability

•

•

256 SUPREME COURT REPORT~ [1959]

¶78

z958

¶79

z958 incurred " are very general and comprehensive and ordinarily take in both civil and criminal liability. In KapUy Chand P~khraj Criminal Law the term " liability" covers every form v. of punishment to which/ a man subjects himself by The State of violating the law of the land. There is no reason why

¶80

Bombay the all comprehensive word should not carry its full import but be restricted to civil liability alone ? The Subba Rao]. 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 se1:Jarately in different clauses for Criminal and Civil liabilities, while s.\ 48(2) of the repealing Act clubbed them together in dne 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 ciNumstance 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 P.Ointed out, that cl. 2 was enacted to obviate the~rgument 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 ins. 48(2) of the repealing Act, we cannot give a restricted meaning to the words "liability incurre<i ", especially when the scheme of the Act does not imply that the Legialature had any intention to exclude from the saying clause criminal liability incurred under the repealed Act. We, tperefore, hold that the liabjlity incurred,

¶81

KapUy Chand P~khraj

Subba Rao].

•

• •

•

•

S.C.R. SeTPREIVIE COURT REPORTS 257

¶91

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 ins. 48 of the repealing Act,1.the Legislature indicated a different intention -¢ithin the meaning of s. 7 of the Bombay General Clauses Act ~o a,s to exclude its operation in construing the provisions of the repealing Act.

¶92

Even so, the lear~d Counsel contended that the appellant, who committed the offence under the repealed Act, should be prosecuted only with. the previous sancti.on of the Collector as provided by that Act, but as the sanction in the present case was-given by the Additional Collector, the Magistrate had no jurisdiction to take cognizance of the offence. To appr'eciate 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.

¶93

, "BOMBAYj SALES TAX ACT, 1946.

¶94

Kapur Chand Pokhraj

¶95

v. • The State of Bombay

¶96

Subba. Rao J.

¶97

"Section 24 (J)(b): Whoever-fails, without sufficient cause, to submit any' return as required by section 10 or knowingly 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."

¶98

" 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 <1f a Magistrate of the Second Class shall try any such offence.':

¶99

"Section 2(a): "Collector "means the Collector of Sales Tax appointed under sub-section (1) of Sectioi113."

¶100

" Section 3(1) : For carrying out the purposes of 33

•

•

' •

258 SUPREME COURT REPORT~ [1959)

¶107

•

¶108

¶109

this Act, the State Government may appoint any person to be a Collector of Sales Tax and such other l(apur Chand Pokhraj persons to assist him as the State Government thinks • v. fit."

¶110

• v. The State of ORDINANCE No. II of 1952: Bonibay Under this Ordinance, Bombay Act V of 1946 and Subba Rao ]. the entries relating to the said Act in the third schedule to the Bombay Merged States (Lawsj Act, 1950 were deemed to have continued to be in force up to and inclusive of N ov.,mber 1, 1952.

¶111

ORDINANCE III OF 1952:

¶112

"Section 36. Offences and Penalties: Whoevcr(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 .........

¶113

........................................................................ 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 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."

¶114

• "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."

¶115

"Section 2(6): "Collector" means the Collector of Sales Tax appointed under section 3."

¶116

' " 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 AC'f, 1953 (Act III of 1953): .

¶117

" Section 36 : Whoever-

¶118

(b) fails without sufficient cause, to furnish ~ny return or statement as required by Section 13 or 18 or

¶119

•

¶120

• -

•

.>·

259

1'UPREME COURT REPORTS

¶126

S.C.R.

¶127

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 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 'hot exceeding one hundred rupees during the period of the continuance of the offence."

¶128

1958

¶129

Kapur Chand Pokhr6-j

¶130

¶131

The State of Rom bay

¶132

Subba Rao ].

¶133

"Section 49 (2) :e 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 provisions 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."

¶134

THE BOMBAY SALES TAX (AMENDMENT)

¶135

ACT, 1956.

¶136

(BOMBAY ACT NO. XX XIX OF 1956)

¶137

"Section 3. Amendment to. section 3 of Bom. III of 1953: In section 3 of the said Act, for sub-sec- · tion (1), the following sub-section shall be and shall be deemed ever to have been substituted, namely:-

¶138

(1) for carrying out the purpose of this Act, the State Government may appoint-

¶139

(a) a person to be the Collector of Sales Tax, and

¶140

(b) one or more persons to be Additional Collectors of Sales Tax, and

•

•

NOTIFICATION ISSUED BY T'HE STATE GOVERNMENT UNDkR SECTION (3) OF THE ORDIN ANGE III OF 1952:

¶145

"Government ,of Bombay is pleased to declare the, "Additional Collector of Sales Tax,. Bombay State, Bombay, as "Collector of Sales Tax, Bombay State, Bomba,y" ~or purposes of the Bombay Sales

•

•

' •

260 SUPREME COURT REPORTS [1959]

¶151

•

¶152

Tax (No. 2) Ordinance, 1952 (Bombay Ordinance No. III of 1952)." .

¶153

Kap1ir Chand Pfhhraj

¶154

It will be seen from the aforesaid provisions that Pfhhraj v. under the Acts as well as under the Ordinances, State of knowingly furnishing a false return or statement is Bombay made an offence punishable with simple imprisonment or fine or with both. The only difference is that under Rao ). 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 Ordinance 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 III 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 ma.de under that Act repea,ling 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.

¶155

The State of Bombay

¶156

Subba Rao ).

¶157

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 Additional e:ollector 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 offepce and the

¶158

...

¶159

¶160

( ..

•

•

•

. ,;-

S.C.R. -SUPREME COURT REPORTS 261

¶166

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 pro-

¶167

• secute in regard to specified offences. Prosecution without the requisite sanction makes the entire proceeeding ab ini~o 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 pertaif!S to procedure. In Maxwt!ll's Interpretation of Statutes, the following passage . appears at page 225:

¶168

Kapur Chaqd Pokh[aj v.

¶169

The Stal• of Bombay

¶170

S14bba RaB j.

¶171

"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."

¶172

•

¶173

¶174

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 domafn of procedure, the sanction given by the Additional Collector appointed by the State as Collector of Sales_ Tax was valid .

¶175

Even so, it was contended that "the notification appointing the Additional Collector as Collector of Sales Tax issued imder Ordinance No. II 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), wqich in clear and express terms laid down

•

•

•

262 SUPREME COURT REPORTS• [1959]

¶180

(

¶181

Kapur Chand Po~hraj

¶182

v. The State of Bomb.iy

¶183

Subba Rao ].

¶184

•

¶185

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 Ta~ continued to be in force when the said Collector gave sanction to prosecute the appellant. In this view it is not necessary to consider the scope of the Bombay Sales Tax (Amendment) Act, 1956.

¶186

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 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(') and Bed Raj v. The State of Uttar Praaesh (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: •

¶187

"But the discretibn is his and if he gives reasons on which a judicial mind could •properly found, an appellate Court should not interfere. The power to enhance a sentence from transportation to death showld very rarely be exercised and only for the strongest (1) [1954] S. C.R. •45(2) [1955] 2 S. C· R. 583.

r·

•

•

•

S.C.R. ~UFREME COURT REPORTS 263

¶195

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."

¶196

Kapur Chand Pokh~aj v.

¶197

The State of Bombay

¶198

Subba Rao].

¶199

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 obs~rvation at page 588:

¶200

" 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."

¶201

•

¶202

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 fal:te returns for successive quarters, omitting from the turn-over shown by him in the returns substantial amounts. Upder s. 24(1) of .the. Act, infringement of

•

•

' [1959]

264 SUPREME COURT REPORTS

¶207

r•.

¶208

the provisions of the Act is made puniRhable. The offences under that section are of different degrees of Kapur Chand Pokhraj moral turpitude. They range from a mere infringe'v. ment of a rule to conscious and deliberate making of The Slate of fals(l returns. For all the offences, the section fixes the Bombay maximum punishment of simple imprisonment which may extend to six months. The magistrate, who tries Subba Rao ]. the offenders under that section, is given a wide discre- • tion to mould the punishment in such a way as to make it commensurate with the n&ture of the offence committed. Though the appellant adopted a tiystematic 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 shorild 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 Hig[t 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 .

¶209

Subba Rao ].

¶210

•

¶211

Bnt 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 jll'tisdiction only to give a maximum sentence of simple imprisonment extending to 6 months but had no power to impose a sentilnce 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 pow~r to sentence

•

•

•

. ,.

S.C.R. ~UPREME COURT REPORTS .265

¶217

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 impriso.nment for a period of one month in each case. 'Vith this modification the appeals are dismissed.

¶218

Appeals dismissed .

¶219

•

¶220

Kapur Chand Pokhrf!lj

¶221

v. The Statt of Bombay

Subba Rao j.

•

SHRIMATI SHANTABAI

March 24.

STATE OF BOMBAY & OTHERS

¶228

• (S. R. DAS c. J., VENKATARAMA AIYAR, s. K. DAS, A. K. SARKAR and VIVIAN BosE JJ.)

¶229

Fundamental Rights, Enforcement of-Unregistered document conferring right to cut and appropriate wood from forest land-Pro" prietary interest vested in State by subsequent enactment-Claim founded on rights accruing from such document, if maintainableConstitution of India, Arts. I9(I)(f), I9(I)(g)-Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Larrds) Act, r950 (No. I of I95I).

¶230

•

¶231

By an unregistered document the husband of the petitioner · granted her the right fo take and appropriate all kinds of wood from certain forests in his Zamindary. With the passing of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, all proprietary rights in land vested in the State under s. 3 of that Act and the petitioner could no longer cut any wood. She applied to the Deputy Commissioner and obtained from him an order under s. 6(2) of the Act permitting her to work the forest and started cutting the trees. The Divisional Forest Officer too.k action " against her and passed an order directing that her name might be cancelled and the cut materials forfeited. She .moved the State Government against this order but to no effect. Thereafter she applied to this Court under Art. 32 of the Constitution and contended that t.he order of Rorest Officer infringed her fundamental fights under Arts. 19(1)(f) and 19(1)(g) : ,

¶232

•

¶233

Held (per curiam), that the order in question did not infringe the ffmdamental rights of the petitioner under Arts. 19(1)(f) and 19(1)(g) and the petition must be dismissed.

•

•

Kapur Chand Pokhraj v. the State of Bombay

Case brief

What is this about?

What did the court decide?

Kapur Chand Pokhraj v. the State of Bombay

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Kanaiyalal Chandulal Monim versus Indumati T. Potdar and Another

Shri Chintaman Rao and Another versus the State of Madhya Pradesh

Kanta Prashad versus Delhi Administration

Chandranath Mukherjee versus Tusharika Debi and Others

Babulal Bhuramal and Another versus Nandram Shivram and Others

Kanhaiyalal versus Dr. D.R. Banaji and Others