Income Tax Officer vs Vino Kumar Didwania

Padmini Jesudurai, J.—The Income Tax Department, which had filed a complaint against the respondent herein for offences u/s 193 and

419 of India Peal Code, 1860, and section 277 of the Income Tax Act, 1961, and which had been taken on file by the Additional Chief

Metropolitan Magistrate, Economic Offences-I, Egmore, Madras, as C. C. No. 1286 of 1985, which complaint Procedure Code, on the ground

that batta expenses for issuance of process to the respondent had not been paid, challenges the correctness of the above order in the present

revision.

Since the matter has been disposed of by the trial court even before the accused had appeared, notice is not given to the respondent. In view of

the decision of this court in Thiyagarajan v. Ayyamperumal [1983] L. W. 212, wherein the learned judge held that, in a revision against dismissal

u/s 203, Criminal Procedure Code, notice to the accused need not be sent and the accused need not be heard. What would apply to a dismissal

u/s 203, Criminal Procedure Code, would also apply to a dismissal u/s 204(4), Criminal Procedure Code.

As stated earlier, the complaint against the respondent was filed by the petitioner and the same had take on the file and process was issued to

the respondent. On April 15, 1986, the trial court, on being satisfied that the respondent was evading summons, ordered issue of a non-bailable

warrant to the respondent with a covering letter to the Commissioner of Police, Bombay. After several adjournments, during which period the non-

bailable warrant remained unexecuted, again on June 28, 1986, a fresh non-bailable warrant was issued also with a covering letter to the

Commissioner of Police, Bombay, with a direction to the petitioner to assist in the execution of the non-bailable warrant. The case was adjourned

to July 30, 1986, and again to August 28, 1986, when the non-bailable warrant was still pending execution, ordered issuance of a fresh summons

to the respondent and posted the case to October 29, 1986. On October 29, 1986, the trial court dismissed the case u/s 204(4), Criminal

Procedure Code, on the ground that batta expenses has not been paid by the petitioner. Hence, the present revision.

Thiru Sam. V. Chelliah, learned counsel for the petitioner, made two submission :

(i) the court was not competent to issue sums when the non-bailable warrant already issued by it earlier had neither been cancelled nor executed

and the warrant remained in force :

(ii) section 204(4), Criminal Procedure Code, would not apply since, under the Criminal Rules of Practice, the Income Tax Department is

exempted from paying process fees and that, therefore, the order of dismissal u/s 204(4), Criminal Procedure Code, could not be justified.

It is seen that the original non-bailable warrant issued against the respondent on April 15, 1986, had either been cancelled nor had it been

executed. While so, again on June 28, 1986, a fresh non-bailable warrant has been issued by the court. That had to be executed on or before July

30, 1986. On that day, the trial court adjourned the matter. The ""A"" diary for the adjournments from July 30, 1986, is as follows :

It is clear, therefore, that the non-bailable warrant originally issued on April 15, 1986, and the second non-bailable warrant issued on June 28,

1986, were pending execution. No reply was received from the Commissioner of Police, Bombay, to whom the warrants were addressed.

Section 87 of the Code empower the court to issue a warrant to any person to whom the court is empowered to issue summons. Section 70(2),

Criminal Procedure Code, is as follows :

Every such warrant shall remain in force until it is cancelled by the court which issued it, or until it is executed.

It is, therefore, clear that when, for reason stated u/s 87, Criminal Procedure Code, the court has found it necessary to issue a warrant, the

warrant so issued would remain in force until it is cancelled by the court which issued it or until it is executed. The trial court, therefore, could not

issue fresh summons to the respondent while the warrant was in force. The trial court ought not to have ordered issuance of fresh summons to the

respondent herein.

The second contention of learned counsel for the petitioner has also to be accepted.

Section 204(4), Criminal Procedure Code, reads as follows :

When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if

such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

Rule 378 of the Criminal Rules of Practice is to the effect that no fees shall be levied on processes issued upon complaints by public servants

or officer of servants of a railway administration acting in their official capacity which u/s 72, clause (xiv) of the Madras Court-fees and Suits

Valuation Act, 1955, are exempt from complaint fees. u/s 72(xiv) of the Madras Court-fees and Suits Valuation Act, 1955, complaint of a public

servants as defined in the Indian Peal Code (Central Act XLV of 1860), is exempt from complaint fees.

It, therefore, follows that no fees shall be levied on process issued upon complaints by the Income Tax Officer. The trial court, therefore, was

wrong insisting that batta expenses for the process to be issued to the respondent had to be paid by the petitioner herein. Section 204(4) of the

Criminal Procedure Code, therefore, cannot be invoked since the process fee is not payable by the petitioner and his failure to pay the same would

not attract the provisions of section 204(4) of the Criminal Procedure Code. The dismissal u/s 204, Criminal Procedure Code, cannot be justified.

In the result, the criminal is allowed. The matter will go back to the trial court for fresh disposal according to law.