PETITIONER: LALJI HARIDAS Vs. RESPONDENT: STATE OF MAHARASHTRA AND ANOTHER DATE OF JUDGMENT: 07/02/1964 BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) SARKAR, A.K. WANCHOO, K.N. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA CITATION: 1964 AIR 1154 1964 SCR (6) 700 CITATOR INFO : R 1969 SC 724 (20) RF 1971 SC 44 (32,33,37) D 1988 SC2267 (32) ACT: Income Tax-False evidence in the proceedings before Income- tax Officer-For the purpose of s. 195(1)(b) Code of Criminal Procedure the proceedings if proceedings in a court-whether Complaint has to be made by the Income-tax Officer-Indian Income-tax Act, 1922 (11 of 1922), s. 37-Code of Criminal Procedure, 1898 (Act 5 of 1898), s. 195(1)(b)-Indian Penal Code, 1860 (Act 45 of 1860), ss. 193, 228. HEADNOTE: The appellant filed a criminal complaint against respondent No. 2 alleging that he had committed an offence under s. 193 of the Indian Penal Code, 1860 by giving false evidence in certain proceedings before the Income-tax Officer under s. 37 of the Indian Income-tax Act, 1922. Respondent No. 2 raised a preliminary objection that the learned Magistrate could not take cognizance of the said complaint, because the proceedings in which he was alleged to have made a false statement on oath were proceedings before a court within the meaning of s. 195(1)(b) of the Code of Criminal Procedure, 1898, and since no complaint in writing had been made by the court of the Income-tax Officer the provision of s. 195(1)(b) created a bar against the competence of the appellant's complaint. On the rejection of this preliminary objection respondent No. 2 preferred a criminal revision application before the Bombay High Court impleading the State of Maharashtra as respondent No. 1. The High Court allowed the revision application. Thereupon the appellant appealed to this Court on a certificate issued under Art. 134(1)(c) of the Constitution. The short question before this court was whether the proceedings before an Income-tax Officer under s. 37 of the Income-tax Act can be said to be a proceeding in any court within the meaning of s. 195(1)(b) Code of Criminal Procedure. Held (per P. B. Gajendragadkar, C.J., K. N. Wanchoo and N. Rajagopala Ayyangar JJ.) (i) While the Income-tax Officer exercises his powers under s. 37(1), (2) and (3), the proceedings held by him are judicial proceedings for the purposes of ss. 193, 196 and 228 Indian Penal Code and the false statement alleged to have been made by respondent No. 2 was Made in a judicial proceeding within the meaning of s. 193, Indian Penal Code. (ii)It is not necessary to decide the general question whether the Income-tax Officer is a Court or not for s. 37(4) of the Income-tax 701 Act makes the proceedings before the Income-tax Officer, judicial proceedings for the purposes of s. 193 Indian Penal Code and these judicial proceedings must be treated as proceedings in any court for the purpose of s. 195(1)(b) Code of Criminal Procedure. The High Court was right in allowing the revision application on the ground that the condition precedent prescribed by s. 195(1)(b) Code of Criminal Procedure had not been complied with as no complaint has been filed by the Income-tax Officer. Jagannath Prasad v. State of Uttar Pradesh, [1963] 2 S.C.R. 850 and Puran Chand Maneklal, in re: I.L.R. 38 Bom. 642, distinguished. Per Sarkar and Das Gupta JJ. (dissenting) (i) From the nature of functions under the various provisions of the Income-tax Act it is clear that the Income-tax Officer is a part and parcel of the executive organ of the State. The fact that for carrying out some of these executive functions he will have the powers as are vested in a court under the Code of Civil Procedure will not make him a limb of the judicial organ. Neither does the fact that he is a quasi- judicial authority make him a court. (ii)In Jaswant Sugar Mills v. Lakshmi Chand. [1963] Supp. 1 S.C.R. 242 this court has held that the Income-tax Officer is not a Tribunal and therefore it is obvious that he cannot be a court. (iii)To say that the legislature in providing in s. 37(4) of the Indian Income-tax Act that a proceeding before the specifiedauthority shall be deemed to be a judicial proceeding within the meaningof s. 193 and s. 228 Indian Penal Code intended also to say that suchauthority shall be deemed to be a court within the meaning of s. 195Code of Criminal Procedure would be to impute to the legislature anintention of which it itself had no knowledge. (iv)The words used in s. 37(4) of the Income-tax Act furnishes no reason to alter the legal position that is inescapable on a consideration of the functions of the Income-tax Officer that he is not a court within the meaning of s. 195 Code of Criminal Procedure. Jagannath Prasad v. State of Uttar Pradesh, [1963] 2 S.C.R. 850, Punamchand Manaklal, re: I.L.R. 38 Bom. 642, State v. Nemchatid Pesvir, 57 Bom. L.R, 1056, Indochina Steam Navigation Co. Ltd. v. The Additional Collector of Customs, [1964] 6 S.C.R. 394, referred to. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 141 of
1962.
Appeal from the judgment and order dated January 30, 1962,
of the Bombay High Court in Criminal Revision Application
No. 1142 of 1960.
S.V. Gupte, Additional Solicitor-General, J. B. Dada-
chanji, O. C. Mathur and Ravinder Narain, for the appellant.
702
S. K. Kapur and R. H. Dhebar., for respondent No. 1.
S. T. Desai, J. L. Jain and V. J. Merchant, for
respondent No. 2.
February 7, 1964. The Judgment of Gajendragadkar C.J.,
Wanchoo and Rajagopala Ayyangar JJ. was delivered by
Gajendragadkar C.J. The dissenting opinion of Sarkar and Das
Gupta JJ. was delivered by Das Gupta J.
GAJENDRAGADKAR C.J.-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 s. 195(1)(b) of the Code
of Criminal Procedure. This question arises in this way.
The appellant Lalji Haridas and respondent No. 2 Mulii
Maniial Kamdar are businessmen and they carry oil their
business in Jamnagar and Bombay respectively. They have
known each other for several years past in the course of
their ordinary business activities. 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. 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. 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. As a re. sult of the said false
statements, the appellant was heavily taxed.
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. 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 s. 195 (1) (b) Cr. P.C., and since no complaint
in writing had been made by the Court of the Income-tax
Officer before which the said proceedings were conducted,
the provisions of s. 1 95 (1) (b) created a bar against the
competence of the appellant’s complaint. The learned Presi-
dency Magistrate held that the Income-tax Officer was not a
Court within the meaning of s. 195(1) (b), Cr. P.C., and
so, he rejected the preliminary objection raised by
respondent No. 2.
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. The State
of Maharashtra was impleaded as respondent No. 1 to the said
Revision Application. 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 s. 195(1) (b), Cr. P.C., and so, it upheld the
preliminary objection raised by respondent No. 2. In the
result, the complaint filed by the appellant was ordered to
be dismissed. The appellant then applied for and obtained a
certificate from the Bombay High Court under Art. 134(1) (c)
of the Constitution and it is with the said certificate that
he has brought the present appeal before us. 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 s. 195(1)(b),
Cr. P.C. 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.
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
s. 37 of the Act. 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 clauses (a) to (d).
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 relating to searches apply. Section
37(3) deals with the question of impounding and retaining
any books of account or other documents. That takes us to
s. 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.
It is thus clear that while the Income-tax Officer exercises
his powers under s. 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). 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 s. 193 I.P.C., must be answered in the
affirmative. That is the plain effect of s. 37(4) of the
Act.
Section 193 of the Indian Penai Code. with which we are
directly concerned in the present appeal provides for
punishment for intentionally giving false evidence. 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 may extend to seven years, and
shall also be liable lo fine; the second part deals with
cases where false evidence has been intentionally given in
any other case, and it prescribes the maximum sentence of
three years as well as fine. 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. There are three explanations to s. 193.
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 takes in, for instance,
committal proceedings. 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. This
explanation covers enquiries before officers deputed by
Courts of Justice to ascertain, for instance, on the spot
the boundaries of land. 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 s. 193 include within the
expression “judicial proceeding” certain proceedings which
on a strict construction of the said expression may not have
been included under it. For the purpose of the present
appeal, however, the only point to notice at this stage is
that s. 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 s. 193, I.P.C. and that means
that if an offence of giving false evidence is proved to
have been committed by a person in a proceeding before the
Income-tax Officer, he would be liable for the higher
sentence awardable under the first part of section 193.
That takes us to section 195 of the Code of Criminal
Procedure. It is well-known that s. 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 to his taking action
under the Code, that some person, whether known or unknown,
has committed an offence, but does not include the report of
a police officer. This definition shows that any person can
make a complaint in respect of the commission of an offence.
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. Thus, the
general rule is that any person can make a complaint, and s.
195 provides for an exception. 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 Court, or of
some other Court to which such Court is subordinate, amongst
the sections mentioned are sections 193 and 228 I.P.C. The
effect of these provisions is that if an offence is alleged
to have been committed either under s. 193 or s. 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 in that behalf that cognizance will be taken of
the said complaint. A person cannot make a complaint in
respect of the alleged commission of any of the offences
specified in s. 195(1)(b); that is its plain effect.
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. 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. 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.
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 s. 193, I.P.C. is a proceeding in
any Court under s. 195. Cr. 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 s. 195(1)(b), Cr. P. C. does not refer
to judicial proceedings as such, but mentions proceedings in
707
any Court. That is why the controversy between the parties
in the present appeal lies within a very narrow compass.
Can it be said that the proceeding which is a judicial
proceeding under s. 193, I.P.C., must be held to be a
proceeding in any Court under s. 195(1)(b), Cr. P. C.? It
is on this aspect of the dispute that the arguments on both
sides are fairly balanced.
In dealing with this question, it is unnecessary to consider
what would have been the position of the Income-tax Officer
acting under s. 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. In Jagannath Prasad v.
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 s. 195, Cr. P.C., and so, it was not
necessary for him to make a complaint for the prosecution of
any person against whom it was alleged that he had committed
an offence,under s. 471 I.P.C. This decision would tend to
indicate that in the absence of s. 37(4) it would have
become necessary to hold that the Income-tax Officer acting
under s. 37(1), (2) and (3), would not be a Court under s.
195, Cr. P.C., and in that sense the provisions of s. 195
could not have been attracted. This position is not
disputed by Mr. Desai who appears for respondent No. 2.
He, however, contends that the provisions of s. 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 s. 195 (1) (b), Cr. P. C., applicable to
the proceedings before the Income-tax Officer. 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 s. 37 was merely to make the
proceedings before the Income-tax Officer judicial
proceedings within the meaning of s. 193, I.P.C., and not to
make s. 195 (1) (b), Cr. P. C. applicable to them. 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. P.C., the
legislature would have expressly said so in terms. The
(1) [1953]2 S.C.R. 850
708
omission to refer to the relevant provision of the Cr. P.C.
in s. 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 s.
193, I.P.C., it cannot be said to be a proceeding before a
Court, because the Income-tax Officer is not a Court.
In support of his argument, the Additional Solicitor General
has referred us to several statutes where the legislative
intention to extend the provisions of s. 195, Cr. P.C., to
specific proceedings has been carried out by making an
express provision in that behalf. 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 s. 195
and Chapter 35 of the Code of Criminal Procedure. The
argument is that where the legislature wanted to extend the
provisions of s. 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.. A similar provision is contained
in s. 18 of the Payment of Wages Act, 1936 (No. 4 of 1936).
In the Industrial Disputes Act, 1947 (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. 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. 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.
Section 45 of the Administration of Evacuee Property Act,
1950 (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 meaning of sections 480 and 482 of
the Code of Criminal Procedure. The same provision is made
by s. 17 of the Evacuee Interest (Separation) Act. 1951 (Act
64 of 1951), as well as by section 26 of the Displaced
Persons (Compensation and Rehabilitation) Act, 1954 (No. 44
of 1954).
On the other hand, s. 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 this case, the legislature wanted to
equate the proceedings under this Act with judicial proceed-
ings under s. 193, I.P.C., and did not intend to make sec-
tion 195, Cr. P.C., applicable to them, because it does not
make the authority under this Act a Court, or does not, in
terms, extend the provisions of the said section to the pro-
ceedings held before such an authority. The same comment
has been made on the provisions of s. 171A(4) of the Sea
Customs Act, 1878 (No. 8 of 1878). Thus presented, the
argument is no doubt attractive and cannot be rejected as
without any substance.
The expression “judicial proceeding” is not defined in the
Indian Penal Code, but we have the definition of the said
expression under s., 4(m) of the Cr. Procedure Code.
Section 4(m) provides that “judicial proceeding” includes
any proceeding in the course of which evidence is or may be
legally taken on oath. The expression “Court” is not
defined either by the Cr. P.C. or the I.P.C. though ‘Court
of Justice’ is defined by s. 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 Judges is
acting judicially. 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. 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 s. 193, I.P.C., it would not follow that
the said judicial proceeding is a proceeding in a Court as
required by s. 195(i)(b), Cr. P.C.
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. Mr. Desai contends that
reading section 193 I.P.C. and s. 195(1)(b) Cr. P.C.,
together. 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. 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 other proceedings. 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 s.
195(1)(b), Cr.P.C. In other words, an offence which is
treated as more serious by the first paragraph of s. 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
s. 195(1)(b) Cr.P.C. 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 s.
37(4) of the Act was enacted, the proceedings before an
Income-tax Officer became judicial proceedings for the
purpose of s. 193, I.P.C. and since they are classed under
the first paragraph of the said section, they attract the
protection of s. 195(1)(b), Cr.P.C. In our opinion, there is
considerable force in this argument, and, on the whole. we
are inclined to prefer the construction suggested by Mr.
Desai to that pressed before us by the learned Additional
Solicitor-General.
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 s. 195, Cr. P.C. to the
proceedings to which they relate, the argument does receive
support, but we hesitate to hold that the omission to refer
to s. 195(1) (b), Cr. P.C. in s. 37(4) of the Act
necessarily means that the intention of the legislature in
enacting s. 37(4) was merely and solely to provide for a
higher sentence in regard to the offence under s. 193,
I.P.C. if it was committed in proceedings before the Income-
tax Officer. It is plain that if the argument of the
Additional Solicitor-General is accepted, the result would
be that a complaint like the present can be made by any
person and if the offence alleged is proved, the accused
would be liable to receive hi-her penalty awardable under
the first paragraph of s. 193, I.P.C. without the safeguard
correspondingly provided by s. 195(1)(b), Cr. P.C. Could it
have been the intention of the legislature in making the
offence committed during the course of a proceeding before
an Income-tax Officer more serious without affording a
corresponding safeguard in respect of the complaints which
-can be made in that behalf? We are inclined to hold that
the answer to this question must be in the negative. That
is why after careful consideration. we have come to the
conclusion that the view taken by the Bombay High Court
should be upheld though for different reasons. Section
37(4) ,of the Act makes the proceedings before the Income-
tax Officer judicial proceedings under s. 193 I.P.C. and
these judicial proceedings must be treated as proceedings in
any Court for the purpose of s. 195(1)(b), Cr. P.C. That.
we think, would really carry out the intention of the
legislature in enacting s. 37(4) of the Act.
In this connection. there is another consideration which has
weighed in our minds. We have already noticed that s. 37(4)
makes the proceedings before the Income-tax Officer judicial
proceedings within the meaning of s. 228 I.P.C. When we turn
to the latter section, we notice that the said section deals
with the offence of intentionally causing insult or
interruption to public servant sitting in judicial proceed-
ing. It is obvious that the offence with which s. 228 deals
is an offence committed against a public servant sitting in
a judicial proceeding. This section is one of the sections
mentioned in s. 195(1)(b), Cr. P.C., and so. any complaint
in
712
respect of the offence alleged to have been committed under
s. 228, I.P.C. has to be made by the Court in question.
There can be little doubt that if a person offers an insult
to a public servant sitting in a judicial proceeding, or
causes. interruption to him while he is so sitting at any
stage of the judicial proceeding, the complaint has to
proceed from the public servant himself; that is the effect
of s. 195(1)(b) Cr. P.C. Before s. 37(4) of the Act was
enacted, an insult given to an Income-tax Officer or
interruption caused to his proceedings whilst he was
conducting his proceedings, would not have amounted to an
offence under s. 228, I.P.C. Section 37(4) makes a
proceeding before the Income-tax Officer a proceeding under
s. 228 I.P.C. and thus, an interruption in his proceedings,
or an insult given to him, has now become punishable under
the said section. Could it have been intended by the
legislature in enacting s. 37(4) that whereas an insult
offered to a public servant acting judicially, or
interruption caused in his proceedings would normally be
cognizable only on the complaint of the public servant him-
self, the same offence, if committed in respect of the
proceedings before an Income-tax Officer, should be
cognizable at the complaint of a private party? The anomaly
which would result if the construction suggested by the
Additional Solicitor-General is accepted, is, in our
opinion, so glaring that the alternative contention urged by
Mr. Desai and upheld by the Bombay High Court which avoids
the said anomaly appears to be more reasonable and more
consistent with the true intention of the legislature. That
is why we are not prepared to accept the appellant’s
argument that the Bombay High Court was in error in
dismissing his complaint on the ground that the condition
precedent prescribed by s. 195(1) (b) Cr. P.C. had not
been complied with as no complaint had been filed by the
Income-tax Officer.
It appears that In re: Punam Chand Maneklal(1) the Full
Bench of the Bombay High Court had taken the view that an
Income-tax Collector is a Revenue Court within the meaning
of that term as used in clauses (b) and (c) of s. 195, Cr.
P C., 1898. Scott, C. J. who spoke for the Full Bench,
observed that it could not be contended that the Income-tax
Collector was a Civil or Criminal Court, and so, he
addressed himself
(1) I.L.R. 38 Bom. 642.
713
to the narrow question as to whether he was a Revenue Court.
Dealing with the question on that footing, he examined the
functions of the Income-tax Collector under Act 11 of 1886,
and held that he was a Revenue Court. He rejected the
contention that he could be treated as a Registrar or Sub-
Registrar under the Registration Act, and so, he found no
difficulty in coming to the conclusion that he was a Revenue
Court. The Bombay High Court in the present case has
substantially based itself on this decision in reversing the
conclusion of the Presidency Magistrate and directing that
the complaint filed by the appellant should be dismissed.
It is unnecessary to consider whether the view taken by the
Full Bench in re: Punam Chand Maneklal(1) is right, because
the relevant provisions of the Income-tax Act have been
subsequently modified in 1922 and different considerations
have now assumed importance. It is no longer possible to
hold that the Income-tax Officer is a Revenue Court, and,
indeed, that has not been the contention raised before us by
Mr. Desai.
In the result, the appeal fails and is dismissed.
DAS GUPTA, J.-Is an Income-tax Officer under the Indian
Income-tax Act, 1922, a court within the meaning of cl. (b)
in sub-section (1) of s. 195 of the Code of Criminal
Procedure? That is the short but difficult question that
arises in this appeal against a decision of the High Court
of Judicature at Bombay. On November 24, 1949, the
appellant filed a complaint in the Court of the Presidency
Magistrate, Bombay, alleging that when the respondent Mulji
Manilal Kamdar was examined on commission by the Income-tax
Officer, Jamnagar Circle, Jamnagar, he gave answers which
were false to his knowledge. He prayed for the issue of
process against the said Mulji Manilal Kamdar, so that he
might be dealt with according to law. An objection was
raised by the accused that in the absence of a complaint by
the Income-tax Officer before whom the false statement was
alleged to have been made the Magistrate was debarred from
taking cognizance of the case. This contention was based on
a submission that the Income-tax Officer was a court within
the meaning of s. 195(1)(b). This objection was rejected by
the Presidency Magistrate.
(1) I.L.R. 38 Boni. 642.
714
The High Court of Bombay was moved against the Presidency
Magistrate’s order. But considering itself bound by a Full
Bench decision of the Court in in re: Punainchand
Manieklal(1) and the later decision in State v. Nemchand
Peshvir (2) the High Court held that an income-tax Officer
when holding proceedings under s. 23 of the Income-tax Act,
1922 is a Revenue Court within the meaning of cl. (b) in
sub-section (1) of s. 195 of the Code of Criminal Procedure.
The correctness of the High Court’s view is challenged
before us by the complainant on the strength of a
certificate granted by the High Court finder Art. 134(1) (c)
of the Constitution.
Section 195(1)(b) is one of the group of sections in the
Code of Criminal Procedure which have laid down exceptions
to the general rule of criminal law that criminal
proceedings can be instituted in a court by any person. To
this rule s. 195 along with ss. 196, 196A, 197, 197A, 198,
198A, and 199 provide exceptions. Section 195 mentions in
its first sub-section a number of offences of which no court
shall take cognizance except on the complaint in writing of
the persons as indicated. Three classes of offences are
dealt with in three cls. (a), (b) and (c) of this sub-
section. Section 195(1)(a) deals with offences punishable
under ss. 172 to 188 of the Indian Penal Code and provides
that no Court shall take cognizance of any of these except
on the complaint in writing “of the public servant concerned
or of some other public servant to whom he is subordinate.”
Section 195(1)(b) deals with offences punishable under ss.
193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210,
211 and 228 and provides that when any such offence is
alleged to have been committed in or in relation to any
proceeding in any court, no court shall take cognizance of
it except on the complaint in writing of such Court or some
other court to which such court is subordinate. Section
195(1)(c) deals with offences punishable under ss. 463, 471,
475 and 476 and provides that when any such offence is
alleged to have been committed by a party to any proceeding
in any court in respect of any document produced
(1) I.L.R. 38 Bom. 642.
(2) 57 Bom. L.R. 1056.
715
or given in evidence in such proceeding, no court shall take
cognizance of the same except on the complaint in writing of
such court, or some other court to which such court is
subordinate.
The second sub-section of s. 195 runs thus
“In clauses (b) and (c) of sub-section (1),
the term “court” includes a Civil, Revenue or
Criminal Court, but does not include a
Registrar, or SubRegistrar, under the Indian
Registration Act, 1877. ”
In this appeal we are concerned directly with cl. (b) of s.
195(1). The appellant’s complaint before the Magistrate
alleged the commission of an offence under s. 193 of the
Indian Penal Code in the course of the examination on oath
by the Income-taxx Officer, Ward A, Jamnagar Circle,
Jamnagar. The examination itself took place in relation to
assessment proceedings against the complainant for the years
1949-50, and 1950-51. If the Income-tax Officer is a Court
it necessarily follows that the Magistrate was not entitled
to take cognizance of this offence except on the complaint
of the Income-tax Officer. That is how the question whether
the Income-tax Officer is a Court or not falls to be
considered.
Section 5 of the Income-tax Act, 1922, mentions six classes
of Income-tax Authorities for ;the purposes of the Act, The
primary function of an Income-tax Officer is the assessment
of income that is chargeable to tax under s. 3 of the Act
and the determination of the tax payable on it. He has to
perform other functions under the Act that are subsidiary
and ancillary to this main function. Under s. 5 (7) the
Income-tax Officers are subordinate to the Director of
Inspection, the Commissioner of Income-tax and the
Inspecting Assistant Commissioner of Income-tax within whose
jurisdiction they perform their functions. Under s. 5(8)
they have to observe and follow the orders, instructions and
directions of the Central Board of Revenue. Chapter III of
the Act in its several sections state what heads of income-
profits and gains shall be chargeable to income-tax and
indicates the duties which the Income-tax Officer
716
has to perform for the purpose of his main function of
assessing the chargeable income. For instance, deductions
under s. 7 (2) (iia) in respect of conveyance owned by the
assessee or used by him for the purpose of his
employment”shall be such sum as the Income-tax Officer may
estimate,……..”The allowances permissible under s.
10(2)(i) “shall be such sum as the Income-tax Officer may
determine”; the allowances under s. 10 (2) (ix) also shall
be such sum in respect of loans made in the ordinary course
of business as the Income-tax Officer may estimate to be
irrecoverable. Again, the allowances mentioned in cl. (a)
and cl. (b) of s. 10(4) (a) cannot be made “if in the
opinion of the Income-tax Officer any such allowance is
excessive or unreasonable.” The proviso to s. 10(5) requires
-the Income-tax Officer to satisfy himself in the cases
dealt with there whether the main purpose of the transfer of
assets was the reduction of liability to income-tax and
provides that where he is so satisfied the actual cost of
the assets shall be such amount as the Income-tax Officer
may determine. Other sections showing the different matters
in which the Income-tax Officer has to be satisfied or to
form an opinion for the purpose of assessment are ss. 12(a),
13 and 17. Chapter IV of the Act,which lays down the proce-
dure to be followed in making the assessment, imposes inter
alia the duty of calling for returns of income (s. 22); of
making assessment of the Income and to determine the sum
payable by the assessee (s. 23); the power to assess
Companies to super-tax (s. 23A); the power to make provi-
sional assessment in advance of regular assessment (s. 23B).
It is obvious however that for carrying out these several
functions properly it is necessary for the Income-tax
Officer to examine documents and persons. Power for this
purpose are conferred on the Income-tax Officer (and certain
other Income-tax Authorities) in s. 37 of the Act. The
first subsection of s. 3 7 runs thus :-
“The Income-tax Officer, Appellate Assistant
Commissioner and Appellate Tribunal shall, for
the purposes of this Act, have the same powers
as are vested in a court under the Code of
Civil Procedure, 1908 (5 of 1908)
717
when trying a suit in respect of the following
matters, namely :-
(a) discovery and inspection.
(b) enforcing the attendance of any person,
including any officer of a banking company,
and examining him on oath,
(c) compelling the production of books of
account and other documents; and
(d) issuing summons.”
The second subsection empowers any Income-tax Officer
specially authorised by the Commissioner to enter and search
any building and seize books of account and other documents.
Under the third sub-section the Income-tax Officer may
impound or retain the books of account and other documents
after following certain procedure. The fourth sub-section
of this section which does not confer any powers but has
been relied on strongly by the respondent will be dealt with
in full detail later in this judgment.
From the brief summary of the Income-tax Officer’s functions
given above it is clear that he is a part and parcel of the
executive organ of the State. The fact that for carrying
out some of these executive functions he will have the
powers as are vested in a court under the Code of Civil
Procedure has not the effect of converting him into a limb
,of the judicial organ. It has been held that he is a
quasi judicial authority. That is not sufficient however to
make him a court. Before we can call him a court, he must
be shown to be a part of the judicial organ of the State.
Leaving out for later consideration the effect of s. 37(4)
it is clear that an Income-tax Officer is not a court.
We have not thought it necessary to refer to the numerous
decisions of the High Courts in India, of this Court or of
the Privy Council in which the question of what is a court
has been considered. We have considered this unnecessary in
view especially of the fact that most of these were noticed
in a recent decision of this Court in Jagannath
718
Prosad v. State of Uttar Pradesh(1) where the question
whether a Sales Tax Officer was a court or not within the
meaning of s. 195(2) of the Criminal Procedure Code was
considered. This Court held that the Sales Tax Officer is
not a Court within the meaning of that section. All the
reasons set out in this judgment which Kapur J. delivered
for the Court are applicable to the case of the Income-tax
Officer and if the reasoning in that case is taken to be
correct, as it must be, ;the Income-tax Officer also must
be, held to be not a court-unless any different conclusion
is. justified from the provisions of s. 37(4) of the Act.
It will not be out of place to mention here what them
Constitution Bench of this Court said in Jaswant Sugar Mills
v. Lakshmi Chand(2) as regards the nature of the functions
of Income-tax Officers. The question for the court’s
decision in that case was whether a Conciliation Officer
under cl. 29 of the Government Order under ss. 3 and 8 of
the U.P. Industrial Disputes Act was a “Tribunal” within the
meaning of Art. 136 of the Constitution and the Court held
that it was not such a tribunal. As illustrations of other
authorities whose primary function is administrative even
though they have the duty to act judicially, Shah J.
speaking for the Court said :-
“The duty to act judicially imposed upon an
authority by statute does not necessarily
clothe the authority with the judicial power
of the State. Even administrative or
executive authorities are often by virtue of
their constitution, required to act judicially
in dealing with question affecting the rights
of citizens. Boards of Revenue, Customs
Authorities, Motor Vehicles Authorities,
Income-tax and Sales Tax Officers are
illustrations prima facie of such
administrative authorities, who though under a
duty to act judicially, either by the express
provisions of the statutes constituting them
or by the rules framed thereunder or by the
implication either of the statutes or the
powers conferred upon them are
(1) [1963] Supp. 1 S.C.R. 242.
(2) [1963] 2 S.C.R. 850.
719
still not delegates of the judicial power of
the State. Their primary function is
administrative and not judicial.”
It is true that the question whether an Income-tax Officer
was a court or a tribunal was not directly for decision in
jaswant Sugar Mills’ case(1). It is clear however that as a
part of the reasoning which the court applied for coming to
the conclusion that the Conciliation Officer is not a
Tribunal this Court was of opinion that an Income-tax
Officer is also not a “Tribunal”. Obviously, if it is not
even a Tribunal it cannot be a court.
It is not seriously disputed by Mr. Desai who appeared
before us for the respondent that looking at the functions
of an Income-tax Officer it is not possible to say that the
Income-tax Officer is a court specially after this Court’s
decision in Jagannath Prasad’s case(‘,) mentioned above.
His main contention is that even though the Income-tax
Officer was not originally a court within the meaning of s.
195 of the Code of Criminal Procedure, the deeming provision
in s. 37(4) has made him a court. Section 37(4) runs thus
:-
“Any proceeding before any authority referred
to in this section shall be deemed to be a
judicial proceeding within the meaning of ss.
193 and 228, and for the purposes of s. 196 of
the Indian Penal Code (45 of 1860).”
The authorities mentioned in the section are the Income-tax
Officer, the Appellate Assistant Commissioner and the
Appellate Tribunal. The direct effect of subsection 4 of s.
37 therefore is that proceedings before an Income-tax
Officer “shall be deemed to be a judicial proceedings within
the meaning of s. 193 and s. 228 and for the purposes of s.
196 of the Indian Penal Code. As we read the section it at
once leaps to the eye that there is no mention in this of s.
195 of the Code of Criminal Procedure. In introducing this
deeming provision in 1956
(1) [1963] Supp. 1 S.C.R. 242.
(2) [1963] 2 S.C.R. 850.
720
Parliament did not think it necessary to extend the deeming
provision for the purpose of s. 195. If Parliament intended
this provision to produce the consequence that the authori-
ties in the section should be deemed to be a court within
the meaning of s. 195 (2) of the Code of Criminal Procedure,
it is reasonable to expect that Parliament would have added
the words “and shall be deemed to be a court within the
meaning of s. 195 (2) of the Code of Criminal Procedure”, or
“shall be deemed to be a court for the purpose of s.195 of
the Code of Criminal Procedure” or some similar Phraseology.
The omission to use any such words is all the more
remarkable when we notice that on several occasions before
1956 Parliament had in expressing an intention that a
particular authority should be a court for the purpose of s.
195 added express words to give effect to that intention.
Thus, in the Payment of Wages Act, which was enacted in
1936, s. 18 after stating that every authority appointed
under sub-s. (1) of s. 15 shall have all the powers of a
civil court under the Code of Civil Procedure for certain
purposes, proceeded to say that “every such authority shall
be deemed to be a civil court for the purposes of s. 195 and
Chapter XXXV of the Code of Criminal Procedure, 1898.”
Again, in s. 23 of the Workmen’s Compensation Act which
confers on the Commissioner for workmen’s Compensation all
the powers of a civil court under the Code of Civil
Procedure, 1908 the legislature added in 1929 the following
words:-“and the Commissioner shall be deemed to be a civil
court for all the purposes of s. 195 and of Chapter XXXV
of,the Code of Criminal Procedure, 1898”. It is worth
noticing also that in several other statutes parliament
after stating that certain proceeding shall be a judicial
proceeding within the meaning of s. 193 and s. 228 of the
Indian Penal Code proceeded to say that for certain purposes
it shall also be deemed to be a court. The Evacuee property
Act of 1950 after stating that the enquiry by the custodian
shall be deemed to be a judicial proceeding within the
meaning of s. 193 and s. 228 of the Indian Penal Code, goes
on to say “and the Custodian shall be deemed to be a court
within the meaning of ss. 480 and 482 of the Code of
Criminal Procedure, 1898”. Another instance of similar
721
legislation is to be found in s. 17 of the Evacuee Interest
(Separation) Act, 195 1, which after stating that any
proceeding before the competent officer or the appellate
officer shall be judicial proceeding within the meaning of
s. 193 and s. 228 of the Indian Penal Code adds “and the
competent Officer or the appellate officer shall be deemed
to be a civil court within the meaning of s. 480 and s. 482
of the Code of Criminal Procedure, 1898”. The Displaced
Persons’ (Compensation and Rehabilitation) Act, 1954 uses
exactly similar words in s. 26. That section first confers
on every officer appointed under the Act the same powers in
respect of certain specified matter,-, for the purpose of
making any enquiry or hearing any appeal under the Act as
are vested in a Civil court under the Code of Civil
Procedure and then proceeds thus “any proceeding before any
such officer shall be deemed to be a judicial proceeding
within the meaning of s. 193 and s. 228 of the Indian Penal
Code and every such Officer shall be deemed to be a civil
court within the meaning of s. 480 and 482 of the Code of
Criminal Procedure, 1898.” Similarly, the Industrial
Disputes Act, 1947 after providing in sub-section (3) of
section 11 that every enquiry or investigation by a Board,
Court, Labour Court. Tribunal or National Tribunal, shall
be deemed to be a judicial proceeding within the meaning of
s. 193 and s. 228 of the Indian Penal Code adds in sub-s.
(8) of the same section the provision that “every Labour
Court, Tribunal or National Tribunal shall be deemed to be a
civil court for the purposes of s. 480 and s. 482 of the
Code of Criminal Procedure, 1892.” This sub-section was
added in 1950.
In clear contrast with these are the statutes which after
saying that certain proceedings shall be judicial proceeding
refrain from adding that the authority will be deemed to be
a court. One such statute is the Sea Customs Act, which in
s. 171A(4) lays down that every enquiry under that section
shall be deemed to be a judicial proceeding within the
meaning of s. 193 and s. 228 of the Indian Penal Code and
stops there. A somewhat similar provision, though in
different phraseology, appears in s. 51 of the Administra-
tor-General’s Act, (111 of 1913) which runs thus:134-159
S.C.-46
722
“Whoever, during any examination authorised by
this Act, makes upon oath a statement which is
false and which he either knows or believes to
be false or does not believe to be true, shall
be deemed to have intentionally given false
evidence in a stage of a judicial proceeding.”
The learned Solicitor-General, who appealed before us on
behalf of the appellant, strongly urged that if the inten-
tion of the legislature had ever been that the Income-tax
Officer or other authorities mentioned in s. 37 should be
deemed to be a court for the purpose of s. 195 of the Code
of Criminal Procedure it would have taken care to express
that intention in clear phraseology. In any case, argues
learned counsel, when in 1956 the old section 37 was wholly
recast the Parliament which at least then had before it a
well established pattern of legislative forms in the
numerous statutes mentioned above. for expressing an
intention that an authority shall be deemed to be a court
for the purpose of s. 195 or any other provision of the Code
of Criminal Procedure, there could be no conceivable reason
for the failure to follow that pattern. In our opinion,
there is considerable force in this argument.
On behalf of the accused-respondent Mr. Desai suggets that
the words actually used, viz., “that proceeding before the
authority shall be a judicial proceeding within the meaning
of s. 193 and s. 228 of the Indian Penal Code” were by
themselves sufficient to give effect to an intention that
authority shall also be deemed to be a court within the
meaning of s. 195 of the Code of Criminal Procedure
According to the learned Counsel, a judicial proceeding
with. in the meaning of s. 193 of the Indian Penal Code can
only be before a court. For this proposition we can find no
support either in principle or authority. It seems clear to
us on the contrary ;that proceedings before tribunals which
are quasi judicial and not a court may well be considered to
be judicial proceedings within the meaning of s. 193 of the
Indian Penal Code. Though the words “judicial proceeding”
have been used in numerous sections of the Indian
723
Penal Code, it has not defined the words, though the words
court of justice” as also the words “a judge” have been de-
fined. The Code of Criminal Procedure in which also the
phrase “judicial proceeding” occurs in several sections has
,defined it in s. 4(m) thus: “Judicial proceeding includes
any proceeding in the course of which evidence is or may be
legally taken on oath”. This definition of judicial pro-
ceeding was included in the Code of Criminal Procedure,
1898, from the very beginning. The fact that for all these
years since 1898 Parliament has not thought fit to give any
definition of the words “judicial proceeding” in the Indian
Penal Code is some justification for thinking that the words
“judicial proceeding” in the Indian Penal Code may reason-
ably be held to have the same meaning as in the Code of
Criminal Procedure. In other words, it would be reasonable
to think that in the Indian Penal Code also the word
“judicial proceeding” has been used to include “any pro-
ceeding in the course of which evidence is or may be legally
taken on oath.” That would bring within the meaning of the
words “judicial proceeding before many quasi-judicial
authorities which are not courts, e.g., a ,Customs Officer
or a Sales Tax Officer.
It is unnecessary for our present purpose to attempt an
exact definition of the words “judicial proceeding” as used
in s. 193 or in any other section of the Indian Penal Code.
Even without any such definition however it appears clear
that the phrase “judicial proceeding’ is wide enough to
include not only proceedings before courts but proceedings
before certain other tribunals. It is pertinent to point
out that if a proceeding before any other authority except a
court could not be a judicial proceeding within the meaning
of s. 193 of the Indian Penal Code, it would not have been
-necessary for Parliament in the Evacuee Property Act, 1950,
in the Evacuee Interest (Separation) Act, 1950, and in the
Displaced Persons’ (Compensation and Rehabilitation) Act,
1954, to add, after laying down that the proceedings before
certain authorities shall be judicial proceedings within the
meaning of s. 193 and s. 228 of the Indian Penal Code the
further words, that “the authority shall be, deemed to be a
civil court” for certain purposes of the Code of Criminal
724
Procedure. It is especially interesting to note in this
connection the provisions of s. 11(3) and s. 11(8) of the
Industrial Disputes Act to which we have already referred.
Under s. 11(3) as originally enacted every enquiry or
investigation by a Board, Court or Tribunal shall be deemed
to be a judicial proceeding within the meaning of s. 193 and
s. 228 of the Indian Penal Code. When Parliament added to
this section sub-section (8) what was enacted was that every
tribunal shall be deemed to be a civil court for the purpose
of s. 480 and s. 482, Criminal Procedure Code, 1898. After
the amendment by the Act 36 of 1956 the concluding portion
of s. 11 (3) ran thus :-“Every enquiry or investigation by a
Board, Court, Labour Court, Tribunal or National Tribunal
shall be deemed to be a judicial proceeding within the
meaning of s. 193 and s. 228 of the Indian Penal Code.” The
same Act substituted in s. 8 the words “Labour Court,
Tribunal or National Tribunal” for the words “Tribunal”. In
spite of the fact however that every enquiry or
investigation by a Board has to be deemed to be a judicial
proceeding within the meaning of s. 193 and s. 228 of the
Indian Penal Code Parliament refrained from saying that a
Board shall also be deemed to be a civil court for the
purpose of s. 480 and s. 482 of the Code of Criminal
Procedure. This emphasises the fact that the legislature
did not think that the necessary effect of legislating that
a proceeding before an authority shall be deemed to be a
judicial proceeding within the meaning of s. 193 and s. 228
of the Indian Penal Code would be that authority shall also
be deemed to be a court. To say now that the legislature in
providing in s. 37(4) of the Indian Income-tax Act that a
proceeding before the specified authorities shall be deemed
to be a judicial proceeding within the meaning of s. 193 and
s. 228 of the Indian Penal Code, intended also to say that
such authority shall be deemed to be a court within the
meaning of s. 195 of the Code of Criminal Procedure would be
to impute to the legislature an intention of which it itself
had no knowledge.
Learned counsel for the accused-respondent then drew our
attention to the use of the words “judicial proceeding” in
s. 476 and s. 479A of the Code of Criminal Procedure
725
and argued that in these sections the words “judicial pro-
ceeding” have been used as equivalent to proceeding in a
court. That may well be so. Section 476 lays down proce-
dure in cases mentioned in s. 195(1)(b) and (c) of offences
that appear to have been committed in or in relation to a
proceeding in a court. It was quite correct therefore to
refer to such proceeding in a later part of the section as
judicial proceeding. Section 479A lays down the procedure
in certain cases of offences of giving false evidence in
civil, revenue or criminal courts and necessarily speaks of
the proceeding before those courts as judicial proceeding.
It is difficult to see how the use of the words “judicial
proceeding” in these sections support the contention that
“judicial proceeding” can only be a proceeding before a
court. There can be no doubt that every proceeding before a
court is a “judicial proceeding”. It does not follow
however that every judicial proceeding is a proceeding
before a court.
Mr. Desai drew a grim picture of what would happen if the
authority a proceeding before which was deemed to be a
judicial proceeding within the meaning of s. 228 of the
Indian Penal Code was not at the same time considered a
court within the meaning of s. 195. He rightly points out
that one consequence will be that if any person offers any
insult or causes any obstruction to a public servant when he
is sitting in any such judicial proceeding and thus commits
an offence under s. 228 of the Indian Penal Code it will be
possible for persons other than the public servants to
institute a criminal case for such offence. This, says the
learned counsel, would be a very undesirable thing. We fail
to see why this should be considered to be undesirable. But
assuming this is so, that is not to our mind a consideration
which should compel us to give the words “judicial
proceeding” a meaning which they do not bear.
It may be mentioned here, as already stated, that under s.
171A(4) of the Sea Customs Act, 1874, every enquiry before a
Custom Officer “shall be deemed to be a judicial proceeding
within the meaning of s. 193 and s. 228 of the
726
Indian Penal Code”. In spite of this, the Constitution
Bench of this Court held in its recent decision in Indo-
China Steam Navigation, Co. Ltd. v. The Additional
Collector of customs(1) that a Customs Officer is not even a
Tribunal. After discussig several previous decisions of
this Court Gajendragadkar C.J., speaking for the Court
observed thus:-
“The result therefore is that it is no longer
open to doubt that the Customs Officer is not
a court’ or tribunal.”
It is difficult to see how if the presence of the words
“shall be deemed to be a judicial proceeding within the
meaning of s. 193 and s. 228 of the Indian Penal Code” in s.
171A(4) have not the effect of making a Customs Officer a
court or a tribunal, the presence of similar words in s.
37(4) in the Indian Income-tax Act, can have that effect.
In our opinion, the words used in s. 37(4) of the Income-tax
Act furnish no reason to alter the legal position that is
inescapable on a consideration of the functions of the
Income-tax Officer that he is not a court within the meaning
of s. 195 of the Code of Criminal Procedure.
We would therefore allow the appeal, set aside the order
passed by the High Court and direct that the Presidency
Magistrate, Bombay, should now dispose of the case in
accordance with law.
ORDER
In accordance with the opinion of the majority, this appeal
fails and is dismissed.
(1) [1964] 6 S.C.R. 594,
727