1993 (8) TMI 31 - HC - Income Tax

Issues Involved:

1. Violation of mandatory norms under Section 244 of the Criminal Procedure Code.
2. Improper discharge of the accused under Section 245(2) of the Criminal Procedure Code.
3. Failure to record evidence by the magistrate.
4. Procedural irregularities by the magistrate.

Issue-wise Detailed Analysis:

1. Violation of mandatory norms under Section 244 of the Criminal Procedure Code:
The primary contention raised by the petitioners was that the learned judicial magistrate violated the mandatory norms under Section 244 of the Criminal Procedure Code. The magistrate failed to take all such evidence as may be produced in support of the prosecution, which is a mandatory requirement. The court emphasized that the magistrate must record all evidence, both oral and documentary, produced by the prosecution. This act is mandatory and not merely directory or obligatory. The magistrate's failure to perform this duty was seen as a significant error of law, causing serious prejudice and scuttling the procedural mandate prescribed in the Code of Criminal Procedure.

2. Improper discharge of the accused under Section 245(2) of the Criminal Procedure Code:
The court highlighted that the magistrate entertained a petition filed on behalf of the accused under Section 245(2) of the Criminal Procedure Code, praying for the discharge of the accused without recording any evidence. The court noted that a petition for discharge under Section 245(2) cannot be entertained without first recording all evidence as required under Section 244. The court cited precedents, including Rama Devi v. State of Bihar and R. S. Nayak v. A. R. Antulay, to emphasize that the power to discharge is exercisable only after taking all evidence referred to in Section 244.

3. Failure to record evidence by the magistrate:
The court observed that the magistrate failed to record any evidence, both oral and documentary, despite a request made by the prosecution. This failure was deemed illegal and contrary to the procedure established by law. The court stressed that the magistrate must record every piece of evidence before deciding whether there is a case for the prosecution or whether the accused should be discharged. The non-recording of evidence was seen as a denial of fair justice and a protraction of the proceedings.

4. Procedural irregularities by the magistrate:
The court noted several procedural irregularities by the magistrate, including the refusal to issue process as specifically contemplated under Section 244(2) of the Criminal Procedure Code and the improper handling of the petition filed on behalf of the accused. The magistrate's actions were seen as contrary to procedural law and practice, resulting in a denial of fair justice. The court directed the magistrate to proceed with the recording of evidence as provided under Section 244, issue process to all witnesses, and dispose of the case in accordance with law as expeditiously as possible.

Conclusion:
In conclusion, the court allowed the petitions, set aside the impugned order, and directed the learned Judicial Magistrate, No. 1, Poonamallee, to issue process to all witnesses, record evidence, both oral and documentary, and dispose of the case in accordance with law without further delay. The court emphasized the mandatory nature of recording evidence under Section 244 and the proper procedure for considering discharge under Section 245.

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