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TMI Blog1958 (3) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... 951, respectively. He maintained double sets of books of accounts and knowingly furnished false returns for the said three quarters to the Sales Tax Officer and thereby committed an offence under section 24(1)(b) of the repealed Act. Under that Act, sanction of the Collector was a condition precedent for launching of prosecution in respect of on offence committed under section 24(1) of the said Act. The said Act was repealed by the Bombay Sales Tax Act, 1952 (Bom. XXIV of 1952), which was published on October 9, 1952. On December 11, 1952, the Bombay High Court declared the Act of 1952 ultra 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 get over the dislocation caused by the Bombay judgment, 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 upto November 1, 1952. On December 24, 1952, another Ordinance, Ordinance III of 1952, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in all the three cases to be concurrent. The appellant obtained special leave from this Court to prefer the above appeals against the judgment of the High Court. The learned counsel for the appellant raised before us the same contentions which his client unsuccessfully raised before the High Court. We shall now proceed to deal with them seriatim. The main argument of the learned counsel was that the Bombay Sales Tax Act, 1953 (Bom. III of 1953) in repealing the Act of 1946 did not save penalties in respect of offences committed under that Act and therefore no prosecution was maintainable in respect 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 also 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 on the 1st day of November, 1952, in respect of any right, title ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the General Clauses Act and the omission under section 48 of the repealing Act of a clause similar to clause (d) of section 7 of the General Clauses Act, demonstrates that the liability saved excludes criminal liability. In our view, the consideration of the provisions of section 7 of the General Clauses Act need not detain us, for section 48(2)(i) of the repealing Act affords a complete answer to the question raised. Under that clause, the repeal did not affect any right, title or obligation or liability already acquired, accrued or incurred. The words "liability incurred" are very general and comprehensive and ordinarily take in both civil and criminal liability. In Criminal Law the term "liability" covers every form of punishment to which a man subjects himself by violating the law of the land. There is no reason why the all comprehensive word should not carry its full import but be restricted to civil liability alone? The 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the offence. To appreciate 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. "BOMBAY SALES TAX ACT, 1946. "Section 24(1)(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." "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 of a Magistrate of the Second Class shall try any such offence." "Section 2(a): 'Collector' means the Collector of Sales Tax appointed under sub-section (1) of section 3." "Section 3(1): For carrying out the purposes of this Act, the State Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of this Act, in so far as such appointment, notification, notice, order, rule, regulation or form is not inconsistent with the provision 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." THE BOMBAY SALES TAX (AMENDMENT) ACT, 1956. (BOMBAY ACT NO. XXXIX OF 1956). "Section 3. Amendment to section 3 of Bom. III of 1953-In section 3 of the said Act, for sub-section (1), the following sub-section shall be and shall be deemed ever to have been substituted, namely: (1) for carrying out the purpose of this Act, the State Government may appoint(a) a person to be the Collector of Sales Tax, and (b) one or more persons to be Additional Collectors of Sales Tax, and (c) such other persons to assist the Collector as the State Government thinks fit." NOTIFICATION ISSUED BY THE STATE GOVERNMENT UNDER SECTION 3 OF THE ORDINANCE III OF 1952: "Government of Bombay is pleased to declare the 'Additional Collector of Sales Tax, Bombay State, Bombay', as 'Collector of Sales Tax, Bombay State, Bombay' for purposes of the Bombay Sales Tax (No. 2) Ordinance, 1952 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Sanction or prior approval of an authority is made a condition precedent to prosecute in regard to specified offences. Prosecution without the requisite sanction makes the entire proceeding ab initio void. It is intended to be a safe-guard 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 pertains to procedure. In Maxwell's Interpretation of Statutes, the following passage appears at page 225: "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 pass as well as future transactions." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised by the Sessions Judge, made the following observation at page 156: "But the discretion 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 should very rarely be exercised and only for the strongest 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." In the latter case, the appellant along with another was convicted by the Sessions Judge under section 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mprisonment and fine and it had given goods reasons for doing so. The High 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. But 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 section 24(1) of the Act. Under that section the Court had jurisdiction only to give a maximum sentence of simple imprisonment extending to 6 months but had no power to impose a sentence 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 power to sentence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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