A SHANMUGAM Vs. XVI METROPOLITAN MAGISTRATE

JUDGEMENT

(1.) THIS O.P. is directed against the order of the XVI Metropolitan Magistrate dated December 29, 1997, whereby a non -bailable warrant issued was pending against the petitioner. The learned advocate for the petitioner contended that for arrears of sales tax, a claim petition was filed before the Metropolitan Magistrate by the assessing authority under Section 24(2)(b) of the Tamil Nadu General Sales Tax Act, 1959 to recover the amount as if it were a fine imposed by the Magistrate, that the relevant provision of the Criminal Procedure Code, 1973 for this purpose is Section 421 and according to this section, the Magistrate can issue a warrant for attachment and sale of any movable property belonging to the offender or issue a warrant to the Collector of the district authorising him to realise the amount as arrears of land revenue from the movable or immovable property or both of the defaulter. However, there is no power to the Magistrate to issue a non -bailable warrant to arrest the defaulter, when he acts to recover the tax as if it were a fine. The amount to be recovered is not under the Criminal Procedure Code, but under the provisions of the Sales Tax Act. Therefore he has no powers to issue a non -bailable warrant to recover the tax and in such matters he is not under the jurisdiction of superior criminal courts. Even if there is failure on the part of the petitioner to appear before the court, the Magistrate could have passed ex parte order instead of issuing a non -bailable warrant. The learned advocate for the petitioner in this regard relied on the following decisions :

(2.) THE learned Government Advocate argued that the petitioner, though present in the court on September 30, 1997 with reference to a complaint preferred by the Sales Tax Officer, he has not chosen to attend the court subsequently. Therefore, the issue of non -bailable warrant by the Magistrate was for the failure of the petitioner to appear before the court. Hence, the superior criminal courts have jurisdiction, if any further appeal is preferred against the order of the Magistrate.

(3.) AS already stated, the short point for consideration in this case is whether the Metropolitan Magistrate is competent to secure the attendance of the petitioner before him in a complaint filed against the petitioner by the Sales Tax Officer though for recovery of tax. Under Section 87 of the Criminal Procedure Code, the Metropolitan Magistrate has got powers to secure the presence of a defaulter in a complaint by issuing a non -bailable warrant also. In fact, it was also stated during arguments by the learned Advocate for the petitioner that the issue of non -bailable warrant was agitated before the Magistrate, but he declined to cancel the non -bailable warrant. As the non -bailable warrant has been issued to secure the presence of the petitioner as a defaulter in a complaint filed before the Magistrate, if the petitioner is aggrieved he can seek relief from a Superior Court under the Criminal Procedure Code. As the issue of non -bailable warrant for arrest was not as a sentence for default to pay the tax arrears under the Tamil Nadu General Sales Tax Act, the various decisions cited by the learned Advocate for the petitioner are not relevant to the issue. There is no case to interfere with the non -bailable warrant issued by the Metropolitan Magistrate against the petitioner who is a defaulter in a case pending before him, though the complaint relates to recovery of tax arrears. In the above circumstances, the original petition is dismissed.