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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 ..... already decided against him in the writ petition. The facts are not in dispute. The petitioner, Sharma, in his return under the Indian Income-tax Act, 1922, for the assessment year 1959-60, claimed deduction for the payment of a sum of Rs. 18,000 allegedly made to M/s. Modern Sanitation, for electrical and sanitary supervising charges during the relevant year. On enquiry, the Income-tax Officer was of the view that the alleged payee did not exist at all and no such payment had been made by the petitioner. Not only the petitioner's 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of same offences could not be maintained against the petitioner. (2) The complaints were not accompanied by documents specified in section 173(4), Criminal Procedure Code. (3) The complainants were not examined nor were their statements recorded by the Magistrate under section 200, Criminal Procedure Code. (4) The complainants have not appeared in person before the Magistrate nor has the Magistrate granted them exemption from personal appearance and yet the complaints have not been dismissed for their default. (5) As the petitioner 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a criminal proceeding, it may be generally regarded as a civil proceeding in the sense that it deals with the civil rights of a party. The nature of the decision of a High Court would thus differ according as it is given in a civil or criminal or some other proceeding. Its decision in a writ petition would be given in a civil proceeding. On the other hand, when the High Court is acting under section 561-A, Criminal Procedure Code, its jurisdiction is exercised in a criminal proceeding inasmuch as a petition under section 561-A, Criminal Procedure 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 ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general principle of res judicata may be stated as follows: 1. A decision by a competent judicial tribunal which is final; 2. It must determine the same questions as are sought to be controverted in the litigation in which the plea of res judicata is raised ; and 3. Parties to the proceedings in which the plea of res judicata is raised must be the same as were parties to the decision which acts as res judicata. Therefore, when section 40 of the Evidence Act says that "the existence of any judgment, order or decree which by law prevents any court 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or issue estoppel may come into conflict with another principle, namely, that the prosecution must prove that the accused is guilty and unless this is done the accused is presumed to be innocent. But principle of issue estoppel cannot override the principle of presumption of innocence of the accused. Similarly, the following special features of the criminal proceedings would further modify the application of issue estoppel. Firstly, in a criminal case there is no duty on the accused to adduce evidence in defence while in a civil case adverse inference may be 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 accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a person for the murder of his father was not regarded as conclusive in a subsequent proceeding for revocation of the grant of probate under section 263 of the Succession Act. These decisions apparently did not attach importance to the fact that the rules of procedure and evidence are more favourable to the accused in a criminal proceeding and, therefore, there should be no objection to a finding obtained against the accused in a criminal proceeding acting as res judicata in a subsequent civil proceeding. It is interesting to note that the decision in Hollington 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 qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndix A in Spencer-Bower and Turner's book on Res Judicata, referred to above. We find so. We may now consider seriatim the objections listed above specifically raised by the petitioner-accused in these petitions : (1) (6): While on the one hand the offence punishable under section 277 of the Income-tax Act, 1961, was allegedly committed by the accused before the Income-tax Officer, the prosecution against the accused for that offence could not be lodged "except at the instance of the Commissioner" in view of section 279(1) of the said Act. The complaint under section 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f section 195, Criminal Procedure Code. Shri Mulla, therefore, argued that the complainants in respect of these offences, were in the position of private persons. They had to be, therefore, examined by the Magistrate under section 200, Criminal Procedure Code. They had also, therefore, to be personally present before the Magistrate. As this was not done, the complaints should have been dismissed by the Magistrate. But the proviso (aa)to section 200 exempts a public servant acting or purporting to act in the discharge of his official duties from such personal examination by 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, Cri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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