Thakur Das Bhatia and Another vs M. P. Meena

Mahendra Bhushan Sharma, J.—This revision petition has been filed in this court against the order dated May 4, 1985, of the learned Chief Judicial Magistrate (Economic Offences) Rajasthan, Jaipur. Under the aforesaid order, the learned Chief Judicial Magistrate has refused to adjourn the case under the provisions of Section 309 Cr.PC. On the last date when the matter came up for orders it was brought to the notice of the learned counsel for the petitioners that an order u/s 309 Cr.PC is an interlocutory order and as such in view of the provisions of Sub-section (2) of Section 397 Cr.PC a revision petition will not lie against the said order. In all fairness to the learned counsel for the petitioner, he agreed that the order made u/s 309 Cr.PC is an interlocutory order and as such the revision petition will not lie u/s 397(2) Cr.PC. If the court, after taking cognizance of the offence or commencement of trial, finds it necessary or advisable to postpone the commencement of or adjourn any inquiry or trial, it may, from to time, for reasons to be recorded postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable. Therefore, an order u/s 309(2) Cr.PC is an interlocutory order and revision petition will not lie against it. Faced with this situation, learned counsel for the petitioners submits that the revision petition may be treated an application u/s 482 Cr.PC.

The question arises whether this court in exercise of its powers u/s 482 Cr.PC can interfere in the order of the learned Magistrate made u/s 309(2) Cr.PC refusing to adjourn the case

It was discretionary with the learned Magistrate either to adjourn the case or refuse to adjourn it. Generally in the matter of discretion the power u/s 482 Cr.PC is not invoked, and the discretionary order is neither interfered with nor is set aside. The contention of the learned counsel for the petitioner is that against the order made by the executive authorities under rule 9 of the Central Excise Rules, 1944 and if appeal is pending u/s 35 of the Central Excise and Salt Act, 1944, the result of the appeal is bound to have a bearing on the result of the complaint filed because if the appeal is allowed and the order made by the executive authority is quashed then the petitioner cannot be convicted for the alleged contravention of various rules. The learned counsel does not dispute that the criminal proceedings are independent proceedings and could have been initiated not with standing pendency of the appeal u/s 35 of the Central Excise and Salt Act, 1944. But as already stated his contention is that till the appeal is disposed of and the matter is finally decided, the learned Chief Judicial Magistrate should have postponed the hearing of the case. The learned counsel for the non-petitioner has contended that the criminal proceedings being independent, the finding given thereon will not have bearing on the case and no case for postponing the hearing of the complaint or adjourning the case is made out. He further submits that the learned Chief Judicial Magistrate in exercise of his discretion u/s 309(2) Cr.PC refused to adjourn the case, and no case for interference is made out. His contention is that the Supreme Court in P. Jayappan v. S.K. Perumal (First Income Tax Officer) Tuticorin 1984 CLR 380, has set the controversy at rest and has held that during the pendency of the reassessment proceedings criminal proceedings can be instituted and can continue.

In Uttam Chand and Others Vs. Income Tax Officer, Central Circle, Amritsar, their Lordships were dealing with (he case where the Income Tax Officer had cancelled the registration of the firm for the assessment year 1969-70. The firm had been granted registration for the earlier assessment years. An appeal was filed against the order of the Income Tax Officer before the Tribunal and the Tribunal on appraisal of evidence on record held that the cancellation of the registration of the firm was not correct and the firm was genuine and set-aside the order of cancellation passed by the Income Tax Officer. The said order was passed on November 30, 1974 but in the meantime the revenue filed a complaint against the petitioners in that case u/s 277 of the Income Tax Act. The Punjab and Haryana High Court held that the criminal proceedings could not be quashed not with standing the fact that the order of the Income Tax Officer has been set-aside by the Tribunal. Their Lordships allowed the appeal before them against the judgment of Punjab and Haryana High Court and quashed the prosecution holding that Smt. Janak Rani was a partner of the assessee firm and that the firm was a genuine firm and there was no reason to prosecute her for filing false returns. The above case of Uttam Chand came up before their Lordships of the Supreme Court in P. Jayappan''s case (supra) and the law laid down in that case was reiterated and it was held that:

It is true that as observed by this Court in Uttam Chand & Ors. v. Income Tax Officer, Central Circle, Amritsar (supra) the prosecution once initiated may be quashed in the light of a finding favourable to the assessee recorded by an authority under the Act subsequently in respect of the relevant assessment proceedings but that decision is no authority for the proposition that no proceeding can be initiated at all u/s 276C and Section 277 as long as some proceedings under the Act in which there is a chance of success of the assessee is pending. A mere expectation of success in some proceeding in appeal or reference under the Act cannot come in the way of the institution of the criminal proceedings u/s 276C and Section 277 of the Act.

Their Lordships further observed that the criminal court has to judge the case independently on the evidence placed before it. Otherwise there is a danger of a contention being advanced that whenever the assessee or any other person liable under the Act has failed to convince the authorities in the proceedings under the Act that he has not deliberately made any false statement or that he has not fabricated any material evidence, the conviction of such person should invariably follow in the criminal court. Their Lordships have held that there is no bar to the initiation of the criminal proceedings merely because an appeal or other proceedings are pending before the authorities. However, their Lordships further observed in para No. 6 that "it may be that in an appropriate case the criminal court may adjourn or postpone the hearing of a criminal case in exercise of its discretionary power u/s 309 of the Code of Criminal Procedure if the disposal of any proceeding under the Act which has a bearing on the proceedings before it is imminent so that it may take also into consideration the order to be passed therein. Even here the discretion should be exercised judicially and in such a way as not to frustrate the object of the criminal proceedings. There is no rigid rule which makes it necessary for a criminal court to adjourn or postpone the hearing of a case before it indefinitely or for an unduly long period only because some proceedings which may have some bearing it is pending elsewhere. But this, however, has no relevance to the question of maintainability of the prosecution. The prosecution in those circumstances cannot be quashed on the ground that it is a premature one. Their Lordships further held in para No. 7 that "we are of the view that the pendency of the reassessment proceedings cannot act as a bar to the institution of the criminal prosecution for offences punishable u/s 276 or Section 277 of the Act. The institution of the criminal proceedings cannot in the circumstances also amount to an abuse of the process of the court."

It will, therefore, be clear that the Magistrate has to exercise his discretion in a proper case to postpone the hearing of a criminal case u/s 309 Cr.PC or to refuse it. In the instant case the Magistrate under his detailed order has refused to postpone the hearing of the case. 1 see no reason to interfere in the discretion exercised by the learned Magistrate. However, if the case reaches to the final stage and the appeal pending is not decided, and if an application is made before the learned Magistrate, he will consider it and pass appropriate orders in accordance with law.

In the result, I do not find any force in this revision petition. It is hereby dismissed.