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TMI Blog1973 (8) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... claim to the deduction was disallowed in the assessment but two further proceedings were taken against the petitioner under the Income-tax Act, 1961, which had in the meanwhile come into force. Firstly, a penalty was imposed on the petitioner for having made a false return under section 274 read with sections 271 and 273 of the Income-tax Act, 1961. Secondly, two identical complaints were filed against the petitioner-one by the Income-tax Officer and the other by the Commissioner of Income-tax-for having committed offences punishable under : (1) section 277 of the Income-tax Act, 1961 (making a false statement which the petitioner knew to be false or did not believe to be true), (2) section 193 of the Indian Penal Code (giving or fabricating false evidence in a judicial proceeding), and (3) sections 467 and 471, Indian Penal Code (forging a document and using it as genuine). In the proceedings for imposition of penalty under the Indian Income-tax Act, 1922, the petitioner has paid the penalty but his appeal against it is said to be still pending. To checkmate the complaints filed against him, the petitioner filed Writ Petition No. 189-D of 1965 praying that the complainants (the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was being prosecuted under section 277 of the Income-tax Act, 1961, which was a special Act, he could not be prosecuted at the same time under the provisions of the Indian Penal Code. (6) Cognizance of the complaints could not be taken because the Income-tax Officer before whom the offences were alleged to have been committed was a "civil, revenue or criminal court" within the meaning of sections 476 and 479-A of the Criminal Procedure Code, who could make the complaints against the petitioner only after complying with these provisions. Since this was not done cognizance of the complaints by the Magistrate was barred by section 195(1)(a), (b) and (c), Criminal Procedure Code. (7) Proceedings for the imposition of penalty and prosecution could not both be taken against the petitioner simultaneously and the complaints could not be lodged particularly when an appeal in the penalty proceedings is still pending. In their opposition to these petitions, it was pointed out by the income-tax authorities that, firstly, those contentions of the petitioner which have already been rejected by this court in Civil Writ No. 189-D of 1965 cannot be raised again in view of the principle of res ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Code, can be filed only in a criminal proceeding. The question, therefore, is whether the decision in C.W. No. 189-D of 1965, though given in a civil proceeding, acts as res judicata in the present petitions under section 561-A, Criminal Procedure Code, though they arise out of a criminal proceeding and may, therefore, be regarded as criminal proceedings. Conflicting judicial decisions may be found cited in commentaries under sections 40 to 43 of the Indian Evidence Act, section 403, Criminal Procedure Code, and section 11, Civil Procedure Code, as to whether a decision in a suit would act as res judicata in a criminal trial and vice versa. In our view, the general principle of res judicata is based, firstly, on public policy and, secondly, on private justice both of which apply to all judicial proceedings whether civil, criminal or otherwise. Public policy requires that in the general interest of the community litigation must come to an end and its conclusion must have a finality. Private justice requires that an individual should be protected from vexatious multiplication of suits and prosecutions at the instance of an opponent whose superior power and resources may enable him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from taking cognizance of a suit or holding a trial" as being a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such trial, it refers not only to the statutory law but to the non-statutory general law of res judicata also. Therefore, either the general principle of res judicata is not cut down by sections 40 to 43 or it is expressly recognised by section 40. Shri Mulla then contended that the principle of res judicata in criminal proceedings is confined to section 403, Criminal Procedure Code. In other words it is only if a person is convicted or acquitted of an offence that he cannot be again tried for the same offence or on the same facts for any other offence for which a different charge from the one made against him might have been framed. It is argued, therefore, that short of such conviction or acquittal, a mere finding of an issue between the parties does not operate as res judicata. This contention became untenable long ago. In Sambasivam v. Public Prosecutor, Federation of Malaya, the law was stated as follows: "The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawfu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e drawn from the refusal of a party to adduce evidence in his possession or power. Secondly, the burden of proof to prove the guilt of the accused is higher on the prosecution in a criminal case as compared to the burden of proof on the plaintiff to prove his case against the defendant in a civil case. Lastly, certain evidence such as confessions in certain circumstances cannot be proved in a criminal case against accused though there is no such restriction between the parties to a civil proceeding. The result is that a finding of fact arrived at in a civil proceeding may not be binding in a criminal proceeding against the accused. In Manipur Administration v. Thokchom Bira Singh, at the end of paragraph 12, therefore, the Supreme Court observed as follows: "The question has sometimes been mooted as to whether the same principle of issue estoppel could be raised against an accused, the argument against its application being that the prosecution cannot succeed unless it proves to the satisfaction of the court trying the accused by evidence led before it that he is guilty of the offence charged. We prefer to express no opinion on this question since it does not arise for examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ton v. F. Hewthorn & Co. was regarded as being contrary to one's sense of justice by the Law Reform Committee chaired by Pearson in England. The Fifteenth Report of the said Committee presented to the Parliament in September, 1967, therefore, recommends a change in the law to make a conviction of a criminal offence admissible in subsequent civil proceedings to show that the person concerned was guilty of the conduct constituting the offence. However that may be, there is no question of presumption of innocence of the accused and no question of the rules of procedure and evidence being more favourable to him when a pure question of law is decided in a criminal or a civil proceeding. In respect of a finding on a question of law therefore, both the civil and the criminal proceeding ought to be on par. The finding of law in a previous civil proceeding should, therefore, act as res judicata in subsequent criminal proceeding in accordance with the well-established general law of res judicata. In Civil Writ No. 189D of 1965, the following questions of law were decided against the accused between the same parties, namely: (1) The return by the accused having been filed on August 7, 1962 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 277 filed by the Income-tax Officer at the instance of the Commissioner of Income-tax would, therefore, satisfy the requirements of section 279(1). The Commissioner of Income-tax has, however, filed an identical complaint so that no doubt may be left that the complaint was filed at his own instance. Both these complaints have to be regarded as one complaint signed by both these officers in the above circumstances. No prejudice can be caused to the petitioner-accused merely because instead of the complaint signed by both of them, there are two identical complaints signed by each of them. Further, the accused is being prosecuted also under sections 193, 467 and 471, Indian Penal Code. Section 195(1)(b) of the Criminal Procedure Code, in respect of section 193 of the Indian Penal Code and section 195(1)(c) of the Criminal Procedure Code in respect of section 471, Indian Penal Code, require that if any of these offences is committed in relation to any proceeding in any court, then the cognisance of these offences can be taken by a criminal court only on a complaint in writing by such a court. According to section 136 of the Income-tax Act, 1961, a proceeding under the said Act before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Magistrate. Section 279 of the Income-tax Act, 1961, expressly required that the prosecution under section 277 against the accused could not be launched except at the instance of the Commissioner. It was, therefore, the duty of the Commissioner to either make the complaint himself or to authorise the Income-tax Officer to do so. The Commissioner has done both these things. The Income-tax Officer was bound to obey the orders of the Commissioner. Both the Commissioner and the Income-tax Officer are, therefore, acting "in the discharge of official duties" within the meaning of the proviso (a) to section 200, Criminal Procedure Code in respect of the complaints under section 277. Similarly, the Income-tax Officer was a "court" for the purposes of the offence punishable under section 193, Indian Penal Code and as held by the Supreme Court in Lalji Haridas's case referred to above, the cognisance of the prosecution under section 193, Indian Penal Code, could not be taken by the Magistrate except on a complaint by the court concerned. The Income-tax Officer was, therefore, required to make a complaint. In respect of section 193, Indian Penal Code, also, therefore, he was acting in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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