INCOME TAX OFFICER Vs. ISHWAR TRACTOR COMPANY LIMITED

JUDGEMENT

(1.) BOTH these matters are being disposed of by this common judgment because both these arise out of the same proceedings before the magistrate. The Income-tax Officer, Jind, filed a complaint on April 2, 1987, against the firm, Ishwar Tractor Company, Jind, and its partners, Smt. Bhanti Devi and Smt. Phulan Wanti and the husbands of these respective partners. The allegation was that they have committed offences under Sections 276C, 277 and 278 of the Income-tax Act, 1961, and under Sections 193, 196 and 120B of the Indian Penal Code. The allegations were that while filing the return for the assessment year 1976-77, for and on behalf of the firm, a false statement was made and the income was suppressed. The husbands of the respective partners were shown as accused on the ground that they were accessories to the commission of the offence by the firm and its partners. The papers before me indicate that the Chief Judicial Magistrate recorded the evidence before framing the charge, and on the basis of material thus placed before him, he discharged the respective husbands of the partners of the firm ; but proceeded to frame charges against the firm and its two partners. Against that decision, the matter was taken before the sessions court by way of three revisions filed by the respective parties, and these three revisions came to be dismissed by the sessions court, by judgment dated February 22, 1992. Being aggrieved by that order/judgment, the Income-tax Department has preferred Crl. Misc. No. 11243-M of 1992 under Section 482 of the Criminal Procedure Code. Criminal Misc. No.7437-M of 1992 was filed by the partner, Phulan Wanti.

(2.) ON behalf of the petitioner, Phulan Wanti, counsel submitted that she was more than 70 years old and as per the circulars issued by the Income-tax Department, no prosecution against her can be entertained during such advanced age. In support of that, he sought to produce before this court an affidavit. In my opinion, an affidavit can hardly be considered as a piece of evidence unless under the Criminal Procedure Code which governs this case such affidavit can be made acceptable as a piece of evidence. Section 1 of the Evidence Act while indicating the extent to which the Evidence Act applies, has clearly stated that the provisions of the Evidence Act would not extend to affidavits presented to any court or officer, etc. In other words, affidavits are accepted as evidence only in those cases where the Code makes specific provision that such affidavit shall be considered as evidence. Such provisions are found in Section 295 of the Criminal Procedure Code, which pertains to the proof of conduct of a public servant, and Section 296 of the Criminal Procedure Code, which pertains to the acceptance of affidavit in proof of evidence of formal character. The proof of age of an accused cannot be said to be evidence of a formal nature, particularly when on it depends the fate of the prosecution. If Smt. Phulan Wanti claims that she is entitled to be discharged on the ground of advanced age and in view of certain circulars from the Income-tax Department, her remedy is to place before the trial court sufficient material and evidence to show that she was thus entitled to the benefit of certain exemptions from prosecution.