Bhikusa Yamuksa Kshatriya Pvt. ... vs Astt. Collector Of Central Excise ...
2003 Latest Caselaw 1193 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard. Perused the records. The point which arises for consideration is whether the pendency of the proceedings in the writ petition under Article 227 of the Constitution of India against the order of discharge passed by the learned Judicial Magistrate in the criminal case instituted against the petitioners by the Department of Central Excise for the alleged offences under the provisions of the Central Excise Act would amount to pendency of prosecution for violation of the provisions of the said Act and the Rules made thereunder, so as to be sufficient to deny benefit to the petitioners under the Kar Vivad Samadhan Scheme, 1998 by invoking the powers under Section 95(ii)(a) of the said Scheme?

2. Few facts relevant for the decision are that the petitioners were prosecuted by the respondents for offences punishable under the various provisions of the Central Excise and Salt Act, 1944 in Criminal Case No. 143 of 1989, which was instituted on 26-9-1989. On account of failure on the part of the department to produce evidence in support of the complaint, the same was dismissed and the petitioners were discharged by the learned Judicial Magistrate by his order dated 30-9-1991. The respondents preferred criminal writ petition against the Order of discharge in this Court being Criminal Writ Petition No. 1125 of 1992, which came to be admitted for final hearing on 16-6-1994. After hearing the parties, the writ petition was dismissed on 26-4-1999. Meanwhile the Government came up with a scheme called Kar Vivad Samadhan Scheme, 1998. Tax-defaulters were sought to be given certain concessions and accordingly were able to take certain benefits even though they had not paid the tax under the various taxing statutes within time. However, the same was subject to conditions and one of such conditions was that there should not have been any prosecution instituted on or before the date of filing of the declaration under Section 88 of the said Scheme. The petitioners filed their declaration under the said Scheme on 4-12-1998. However, the respondents rejected the said declaration on 24-2-1999 on the ground that prosecution case was pending against the petitioners. Hence the present petition.

3. The learned Advocate appearing for the petitioners has sought to assail the impugned order on two grounds; firstly, that in order to contend that prosecution was pending against the petitioners, it was necessary for the respondents to establish that the proceedings initiated under the tax enactments had not been concluded in one way or other, and secondly, that the criminal writ petition against the order of discharge cannot be said to be continuation of the proceedings before the Magistrate. He has further submitted that undisputedly the proceedings which were initiated before the learned Magistrate were on a complaint filed by the officer of the Central Excise Department and therefore for all purposes it was in the nature of a private complaint for the purpose of the proceedings under the Criminal Procedure Code and therefore consequent to the discharge of the petitioners, the proceedings came to an end. The proceedings in writ petition were not the continuation of the prosecution launched before the Magistrate as those proceedings before the Magistrate were in terms of the provisions of Criminal Procedure Code. He has relied upon the decisions in the matters of Maqbool Hussain v. State of Bombay , State of Uttar Pradesh and Ors. v. Dr. Vijay Anand Maharaj, , Ramchandra Maroti Patil v. State of Maharashtra, through the Collector, Akola, reported in 1970 Mh.L.J. 349 and Rajmai Chhotelal Jain v. Uttam Isnaji Ingole, reported in 1980 Mh.L.J. 112 in support of his contention. The learned Advocate appearing for the respondents, however, has submitted that no fault can be found with the impugned order as undisputedly the criminal writ petition was pending on the day when the declaration was filed by the petitioners and therefore the petition deserves to be dismissed.

4. As regards the entitlement of the benefit under the Kar Vivad Samadhan Scheme, 1998 in relation to the tax arrears under any indirect tax enactments, the same can be refused when there is a prosecution instituted under any such enactment on or before the date of filing of the declaration by the party under Section 88 of the said Scheme. The provision in that regard is very clear under Section 95(ii)(a) of the said Scheme. Indeed, there is no dispute about the same. The contention of the petitioners however is that the prosecution which was sought to be instituted against the petitioners on various grounds had come to an end on 30-9-1991 consequent to the discharge of the petitioners and by no stretch of imagination the writ petition, which was admitted on 16-6-1994 and was pending for final hearing on the date of declaration under Section 88, cannot be said to be a criminal prosecution instituted and pending on the date of declaration against the petitioners.

5. Undisputedly, the petitioners were prosecuted for the offences under various sections of the Central Excise and Salt Act, 1944 at the instance of the Assistant Collector of the Central Excise Department. Being so, the cognizance of the case by the Magistrate was in terms of Section 190(1)(a) of the Criminal Procedure Code and consequent to discharge of the petitioners in exercise of powers under Section 239 of the Criminal Procedure Code, the proceedings before the learned Magistrate had come to an end and the learned Magistrate had become functus officio in relation to the said case except, for the purpose of exercise of powers under Section 452 of the Criminal Procedure Code in relation to the disposal of property on conclusion of the trial.

6. Undoubtedly, the order of discharge is not appealable, however, in revision application under Section 397 of the Criminal Procedure Code by the revisional Court or under Section 482 of the Criminal Procedure Code by the High Court under inherent powers can set aside the order of discharge. Undisputedly, no such revision application or the proceedings under Section 482 of the Criminal Procedure Code were filed in relation to the order of discharge of the petitioners. What was preferred was the writ petition seeking interference of this Court in exercise of its writ jurisdiction. Indeed, nothing prevents the High Court from exercising the power of review which is inherent in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable error/s committed by the Court below, but certainly there are limitations for exercise of such powers and it may not be exercised on the ground that the decision of the Court below was erroneous on merits, as the same would squarely fall within the province of a Court of Appeal. The power of review cannot be confused with the appellate power. Likewise the power of superintendence is restricted to keep the inferior Courts within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. However, the writ jurisdiction is different from the appellate powers, and is essentially the extra-ordinary original jurisdiction, albeit which is not same as original civil jurisdiction.

7. The Apex Court in State of Uttar Pradesh and Ors. v. Dr. Vijay Anand Maharaj (supra) while dealing with the issue as to whether proceedings under Article 226 of the Constitution of India can be said to be continuation of the proceedings before the Tribunals and Courts below, has observed that :--

"It is, therefore, clear from the nature of the power conferred under Article 226 of the Constitution and the decisions on the subject that the High Court in exercise of its power under Article 226 of the Constitution exercises original jurisdiction, though the said jurisdiction shall not be confused with the ordinary civil jurisdiction of the High Court. This jurisdiction, though original in character as contrasted with its appellate and revisional jurisdictions, is exercisable throughout the territories in relation to which it exercises jurisdiction and may, for convenience, be described as extra ordinary original jurisdiction."

8. The Apex Court in Ouseph Mathai and Ors. v. M. Abdul Khadir, , while dealing with the powers of the High Court under Article 227 of the Constitution, has observed that extra-ordinary powers appear to have been exercised in a routine manner as if the power under Article 227 of the Constitution was the extension of powers conferred upon a litigant under a specified statute and such an approach and interpretation is unwarranted. Further, dealing with the issue of finality to the eviction proceedings under the rent legislations and particularly under the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965, the Apex Court held that :--

"Sub-section (5) of Section 18 unambiguously provides that the decision of the Appellate Authority and subject to such decision, an order of the Rent Control Court shall be final and shall not be liable to be called in question in any Court of law except as provided in Section 20 of the Act. It follows, therefore, that the order of eviction, if passed against a tenant shall attain finality after the decision of the Appellate Authority or at the most after the decision of the revisional authority as contemplated under Section 20 of the Act. If an order of eviction has been passed under Section 11(2) of the Act, the said order and direction shall become executable after the expiry of one month from the date of the final order passed by the Rent Control Court, the appellate Court or the revisional Court, as the case may be, subject, however, to the extension of time granted by the aforesaid Courts and authorities in terms of Clause (c) of Sub-section (2) of Section 11. Proceedings under Article 227, not being the extension of the proceedings under the Act would not automatically authorise the Court to extend the time under the aforesaid proviso."

9. The Division Bench of this Court, in Ramchandra Maroti Patil v. State of Maharashtra, through the Collector, Akola (supra) while dealing with the matter under Article 227 of the Constitution of India arising from the order passed by the Tribunal under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, has observed that:--

"The approach to this Court for the purpose of issuing any of the writs contemplated by Article 226, as also for the purpose of exercising the powers of superintendence under Article 227 is an extraordinary remedy and not provided as normal remedies under the various statutes under which the litigation relating to rights is fought. When this Court exercises the, powers under these Articles and more particularly deals with the orders of the various Tribunals and Courts, it primarily considers whether there is any error of jurisdiction, or whether there is an error of law apparent on the face of the record. If any such errors are found, the orders are quashed and appropriate writs are issued. The law is laid down for the guidance of the Tribunal which has committed the error of law of which has assumed jurisdiction which it did not possess, or in an appropriate case, it has refused to exercise jurisdiction it possessed. In that sense, a petition under these Articles could not be considered to be a continuation of the proceedings which were started and concluded in any of the Courts or Tribunals provided by the laws of this land. The concept of affirmance of an order of the Court immediately below seems to apply to those cases where a litigant is able to approach this Court by way of a normal remedy provided under the Civil Procedure Code or any other law for the time being in force and this Court deals with the matter either in revision or appeal which are properly the continuation of the earlier proceedings."

10. The Division Bench in Ramchandra Maroti Patil's case (supra) has further ruled that :--

"The High Court does not hear either an appeal or revision when a writ petition is entertained under Article 226 or 227. It is an independent proceedings altogether, and in that sense it is an original civil proceeding before the High Court....... When the litigant is permitted to approach the High Court by way of a normal remedy under a particular statute like the remedy of an appeal or a revision application, there is a continuity of the proceeding. It is only in those circumstances where the remedy before the High Court is a continuation of the original proceeding that the High Court either affirms the judgment or order of the Court below or modifies or sets it aside. The continuity of the proceedings, therefore, seems to be a necessary qualification when the order of the High Court or the judgment of the High Court could be said to affirm the judgment or order of the Court below. Since the writ petition is an independent proceeding where the High Court used its extraordinary jurisdiction for correcting an obvious wrong by way of using the powers of superintendence, the order could not be conceived of as an order of affirmance. It is an independent order passed by the High Court in its original civil jurisdiction."

11. The learned single Judge of this Court in Rajmal Chhotelal Jain v. Uttam Isnaji Ingole (supra), following the earlier decisions, has also held that the petition under Article 227 cannot be considered to be continuation of the proceedings which had commenced before the Special Tahsildar, Murtizapur, under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1958.

12. The law on the point as to whether the proceedings under Article 227 instituted in relation to any order or the proceedings before the Courts below amount to continuation of such proceedings before the lower Court or not, being well-settled by the above referred decisions and it has been clearly ruled that such proceedings under Article 227 of the Constitution are in its original jurisdiction, albeit this original jurisdiction is not to be confused with the original civil jurisdiction of the High Court and can be distinguished as extraordinary original jurisdiction. Needless to say that proceedings initiated pursuant to a complaint filed under the provisions of the Central Excise Act for violation of any of the provisions of such Act having been concluded by way of discharge of the accused, merely because the aggrieved party had sought the interference of the High Court in its writ jurisdiction, such proceedings in writ before this Court, cannot be held to be continuation of the criminal proceedings instituted before the Judicial Magistrate by such party for violation of the provisions of the Central Excise Act. Being so, in the case in hand, where the proceedings before the learned Magistrate were concluded, on discharge of the petitioners, merely because the respondents had preferred writ petition and the same was admitted for final hearing before this Court, it cannot be held that any criminal case or prosecution as such under the said Act was pending, so as to enable the respondents to deny the benefit of the said Scheme to the petitioners by taking resort to the provisions of the Scheme contained in Section 95(ii)(a) thereof.

13. The decision of the Apex Court in the case of Maqbool Hussain v. State of Bombay (supra), however, is of no help to the petitioners in the facts of the case, as the observation therein that"..... the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a Court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure," was in respect of issue of double jeopardy and bar against the prosecution of a person for the same offence more than once.

14. Considering the facts of the case, therefore, it is clear that the proceedings, instituted pursuant to the complaint, came to an end on 30-9-1991, consequent to the discharge of the petitioners. Undisputedly, the declaration under the said Scheme was filed on 4-12-1998. As stated above, no prosecution for any offence under the said Act was pending against the petitioners on 4-12-1998. Hence the impugned order is to be held to be bad in law and is liable to be quashed and set aside. As already stated above, pendency of the writ petition does not amount to the pendency of the prosecution under the said Act.

15. In the circumstances, therefore, the petition is allowed. The rule is made absolute in terms of prayer Clause (b). Excess amount, if any, out of the amount stated to have been deposited by the petitioners with the department, would be refundable to the petitioners. Needless to say that the respondents in that regard will have to take appropriate steps within a period of six weeks from today and refund the excess amount to the petitioners. Accordingly, the petition is made absolute in above terms with no order as to costs.

16. All concerned to act on the ordinary copy of this order duly authenticated by the Associate/P. S. of this Court as a true copy.