C A BALOO Vs. UNION OF INDIA

JUDGEMENT

(1.) 1.ARUNACHALAM J.The petitioner in the first batch, Crl. M. P. No. 7552 of 1985, etc., is M/s. Jayalakshmi Financiers represented by its proprietor, C. A. Baloo. In the second batch. Crl. M. P. No. 7962 of 1985, etc., the petitioner is M/s. Samarias Finance, Madras.

(2.) THE respondent in all these petitions, in both batches, is the Assistant Director of Inspection (Investigation), Office of the Deputy Director, Inspection, Income-tax Department, Madras-34.THE first batch of cases are referable respectively to C. C. Nos. 187 to 197 of 1985, pending on the file of the Additional Chief Metropolitan Magistrate (E. O. II), Egmore, Madras. THE second batch of cases in the serial order are referable to C. C. Nos. 283 to 318 of 1985, pending on the file of the same learned Magistrate.Prosecutions have been initiated against the respective petitioners in these petitions by the respondent alleging violation of the provisions of section 269SS of the Income-tax Act, 1961, punishable under section 276DD of the same Act. Since various deposits are involved, several dates, the petitioners had received in cash various deposits as evidenced by cash book entries which amounted to contravention of the provisions by cash book entries which amounted to contravention of the provisions of the Income-tax Act aforestated.In all these petitions filed under section 482, Criminal Procedure Code to call for the records and to quash the pending prosecutions as not maintainable and an abuse of the process of the court, Mr. V. Ramachandran, learned counsel appearing on behalf of the respective petitioners, urged a single contention before me. While urging this contention, he submitted that, in the grounds raised in the petition, the constitutional validity of section 269SS of the Act had been questioned, but that ground has now become infructuous in view of the dismissal by this court of several writ petitions challenging the validity of that provision.THE single ground urged is that, with effect from April 1, 1989, section 271D had been introduced in the Income-tax Act while omitting section 276DD with effect from the same date. Section 271D , as it stands now, imposes only a penalty for violation of section 269SS and prosecutions for such violation had been done away with.

(3.) THE principle laid down was that just as a person accused of the commission of an offence had no right to trial by a particular court or to a particular procedure, the prosecutor equally has no right to insist that the accused be subjected to an enhanced punishment under the repealed Act. Obviously, the law laid down in the aforesaid decision will not be attracted to the facts of this case.In the same ruling, the Supreme Court has stated that "whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act whether it has been specifically mentioned in the repealing Act or not, will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal, there is scarcely any room for expression of a contrary opinion. But, when the repeal is followed by fresh legislation on the same subject, the court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention" * . In the latter part of the judgment of the apex court mentioned above, note had been taken of the decision in State of Punjab v. Mohar Singh Pratap Singh, 1955 AIR(SC) 84, 1955 (61) CRLJ 254, 1955 SCJ 25, 1955 (1) SCR 893, wherein, while considering sections 4, 7 and 11 of the East Punjab Refugees (Registration of Land Claims) Act (12 of 1948) and the validity of the prosecution under the Act, the Supreme Court state as hereunder (at page 88 of AIR 1955 SC) :"Whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow, unless, as the section itself says, a different intention appears. In the case of a simple repeal, there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject, the court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. THE line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities, but whether it manifests an intention to destroy them.