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TMI Blog1997 (1) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... r brief). The facts giving rise to these appeals move in a narrow compass. Respondent No. 1 was a partnership firm at the relevant time and it obtained a contract from the Gujarat Housing Board (the Board for convenience) some time in 1983 for construction of houses for the Board. Respondents Nos. 2 and 3 were its partners at the relevant time. Respondents Nos. 1 to 3 herein entrusted the work of constructing houses to three firms by the names of Uma Construction Company, Jitendra Construction Company and Bhagwati Construction Company. They were practically sub-contractors of respondents Nos. 1 to 3 herein. The latter did not deduct at source the amount of tax from the amount payable to the sub-contractors as required under section 194C o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of original accused No. 3 and after hearing arguments, by his common judgment and order passed on February 25, 1994, in the aforesaid criminal cases, the learned Chief Judicial Magistrate acquitted the original accused of the offences punishable under section 276B read with section 278B of the Act. That aggrieved the original complainant. He has, therefore, preferred all these appeals after obtaining leave of this court under section 378 of the Code of Criminal Procedure, 1973 ("the Code", for brief) for questioning the correctness of the aforesaid judgment and order passed by the learned trial magistrate. Learned standing counsel for the Union of India, Shri Naik, for the appellant, has taken me through the entire evidence on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on invalidity of the sanction accorded for prosecuting the original accused under section 279 of the Act. He has urged that the penalty proceedings and their quashing in appeal at the instance of respondent No. 1 herein have not been taken into consideration by the sanctioning authority before sanctioning the prosecution at least for the assessment year 1986-87. The learned advocate, Shri Puj, has also submitted that the sanctioning authority has to take into consideration whether or not the case could be compounded before institution of the proceeding in view of section 279(2) of the Act and nothing appears on the face of the sanction orders whether or not this aspect was considered by the sanctioning authority before sanctioning the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused in each case. Learned standing counsel for the Union of India, Shri Naik, has further urged that, if the validity of the sanction granted in each case was called in question before the trial court, the complainant could have brought on record the relevant material to show that all relevant papers, including the penalty proceedings, were placed before the sanctioning authority and the sanction to prosecute in each case was granted after taking into consideration all the relevant material. He has further urged that whether or not to compound the offence before institution of the prosecution was in the sole discretion of the sanctioning authority and it was not necessary for him to record reasons in the sanction order why he did not cho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record in that regard is found justified. Since this point has been raised for the first time at the appellate stage, I think that it would be in the interests of justice to give an opportunity to the original complainant to bring on record the relevant material to show that a valid sanction to prosecute came to be granted in each case. It is not necessary for me to decide at this stage whether or not an opportunity of hearing has to be given before grant of sanction to prosecute in view of the relevant provisions contained in section 279 of the Act. I may only observe at this stage that section 279 of the Act is not in pari materia with section 197 of the Code. One important feature occurring in section 279 of the Act is the provision f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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