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TMI Blog1993 (8) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under section 245(2) of the Criminal Procedure Code has been filed on behalf of the accused/respondent herein before the learned judicial magistrate praying for the discharge of the accused. But at the same time, a petition on behalf of the petitioner herein under section 244 of the Code has also been filed requesting the learned magistrate to issue process as prayed on behalf of the petitioner by passing the following order: Aggrieved at this order, as it causes great injustice to the petitioner herein who is the Income-tax Officer, he has come forward with this petition seeking a direction to the learned magistrate to proceed with the trial of the case in accordance with law by virtue of the power vested under section 482 of the Criminal Procedure Code. The brief facts leading' to the filing of complaints involved in the above cases projected on behalf of the petitioner are stated as follows : The accused in both the cases, Dr. Mrs. M. S. Bhavani, wife of A. Thanikachalam, Vijaya Reddiar Buildings, No.5, M. T. H. Road, Avadi, Madras-54, has wilfully fabricated her account books for the period from April 1, 1981, to March 31, 1982, relevant for the income-tax assessment y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmitted and interim stay has been granted by this court, notices of the same were ordered to be served upon the respondent. Though it was served, the respondent had not entered appearance nor engaged a counsel and, therefore, there was thus no contra representation made on behalf of the respondent herein in both the cases. This is a case where complaints have been instituted before the learned judicial Magistrate, No. 1, Poonamallee, by the income-tax authorities who are officers contemplated and defined in the Code of Criminal Procedure. Therefore, there is no difficulty at all to observe that sections 244 and 245 of Chapter XIX-B of the Code are applicable to the case on hand. Before proceeding further, it is worthwhile to extract sections 244 and 245 of the Code in the context of the grievance exposed before me which runs as follows : "244. Evidence for prosecution.-(1) When, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure Code, the very object and scheme provided under section 244(1) and (2) of the Criminal Procedure Code would be fortified and further qualified by sub-section (1) of section 245 of the Criminal Procedure Code, The language adumbrated in sub-section (1) "if, upon taking all the evidence referred to in section 244, the magistrate considers, for reasons to be recorded" would clearly emphasise the fact that before the learned magistrate decides whether there is a case or not for the prosecution, he shall record every evidence as provided under section 244 of the Criminal Procedure Code and he must give the reasons for such conclusion he has to arrive for the purpose of sub-section (2) of section 245 of the Code or to discharge as provided therein. The word "groundless" in sub-section (2) of section 245 of the Code Would clearly mean that the evidence must be such that no conviction can be rested on it. A combined reading of the above sub-sections of law clinchingly enjoins the fact that the duty of the learned magistrate in recording such of the evidence, both oral and documentary, produced by the prosecution to be recorded is not only onerous but also a mandatory one, before passi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spite of the difference in the language of the three sections the legal position is that if the trial court is satisfied that a prima facie case is made out, charge has to be framed. " In R. S. Nayak v. A. R. Antulay, AIR 1984 SC 991, the apex court has held as follows (headnote) : "Where cognizance of an offence is taken under section 8(1), the judge has to hold trial according to the procedure prescribed in Chapter XIX-B, i.e., the procedure prescribed in sections 244 to 247 of the Code. To be precise, the judge has to try the case according to the procedure prescribed for cases instituted otherwise than on police report." The case-law decided by my learned brother Arunachalam J. in S.A.R. Somasundaram v. Asst. CIT [1992] 197 ITR 26 (Mad), is also relevant to be quoted in the context of the present case. The learned judge in the aforesaid ruling has Observed as follows (headnote) : "Held, dismissing the petition, that it had been contended that the complaint had been filed by a person who was not competent to do so and that the penalty imposed had been set aside in appeal, though subsequent to the filing of this prosecution. Both these contentions related to appreciation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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