28 March 1958
Supreme Court
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KAPUR CHAND POKHRAJ Vs THE STATE OF BOMBAY


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PETITIONER: KAPUR CHAND POKHRAJ

       Vs.

RESPONDENT: THE STATE OF BOMBAY

DATE OF JUDGMENT: 28/03/1958

BENCH:

ACT:        Criminal trial-Repeal of Penal Statute-Saving of  ’Liability        incurred’,  scope  of-Sanction by authority empowered  under        repealing statute-If valid for prosecution for offence under        repealed   statute--Sentence-Whether   plea  of   guilty   a        consideration  for  awarding light  sentence-Enhancement  of        sentence-Bombay Sales Tax Act, 1946 (Bom V of 1946), ss.  2,        3  and 24, Bombay Sales Tax Act, 1953 (Bom.  III  of  1953),        ss.  2, 3, 36, 37, 48 and 49-Bombay Sales Tax Ordinance  III        of 1952, SS. 2, 3, 36 and 37.

HEADNOTE: The appellant was registered under the Bombay Sales Tax Act, 1946.   He  maintained  double sets  of  account  books  and knowingly  furnished, for the period September 30,  1950  to March  31, 1951, false returns to the Sales Tax Officer  and thereby  committed an offence under S. 24(1)(b) of the  Act. Under the Act sanction of the Collector was necessary before cognizance  of the offence could be taken by a  Court.   The I946 Act was repealed by the Bombay Sales Tax Act, 1952, but the  1952  Act was declared ultra vires by the  Bombay  High Court.  Thereupon the Bombay Sales Tax Ordinance 11 Of  1952 was  promulgated which provided that the 1946 Act was to  be deemed  to  have been in existence up to November  1,  1952. This  was  followed by Ordinance 111 of 1952  which  further extended  the life of the 1946 Act.  Thereafter, the  Bombay Sales Tax Act, 1953 was passed which repealed both the  1946 Act and Ordinance III of 1952.  The 1953 Act made  provision for an offence similar to that covered by S. 24(1)(b) of the Act, prescribed a similar procedure for prosecuting  persons committing  the said offence and saved liabilities  incurred under the 1946 Act.  During the period when Ordinance III of 1952 was in force the State Government issued a notification appointing the Additional Collector to be a Collector  under the Ordinance, and the Additional Collector granted sanction for  the  prosecution of the appellant.  The  appellant  was tried  by the Presidency Magistrate before whom  he  pleaded guilty.   The  Magistrate accepted the plea,  convicted  him under  S.  24(1)(b) of the 1946 Act and sentenced him  to  a fine  of Rs. 200, in default to suffer one month’s  rigorous imprisonment.   The State preferred a revision to  the  High Court  for  enhancement  of  the  sentence.   The  appellant contended that by the repeal of the 1946 Act the offence was effaced  and that the prosecution was defective inasmuch  as sanction  was given by the Additional Collector and  not  by the  Collector as required by the 1946 Act.  The High  Court repelled both these contentions and enhanced the sentence to rigorous imprisonment for one month in addition to the  fine already imposed

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251 Held, that the offence under s. 24(1)(b) of the 1946 Act was covered  by  the saving clause in S. 48 of 953 Act  and  the appellant could be convicted of that offence.  The saving by s.  48 of the 1953 Act of " any liability incurred  "  under the 1946 Act saved both civil and criminal liability. Held,  that the sanction given by the  Additional  Collector was  a valid sanction for the prosecution of the  appellant. The   notification  issued  under  Ordinance  III  of   1952 appointing  the  Additional Collector as Collector  must  be deemed  to have been made in exercise of the relevant  power in respect of the offence saved by the Ordinance.   Further, the  notification must be deemed to have continued in  force under  the  1953  Act by reason of s.  49(2)  of  that  Act. Sanction  pertains  to  the  domain  of  procedure  and  the procedure prescribed under the new 1953 Act must be followed even  in  respect of offences committed under  the  repealed 1946 Act. Held further, that in the circumstances of the case the High Court was justified in enhancing the sentence.  The sentence should  depend upon the gravity of the offence and not  upon the  fact  that the accused pleaded guilty or  attempted  to defend  the case.  As the appellant had kept double sets  of account   books,  it  was  eminently  a  case  in  which   a substantive  sentence  ought to have been imposed,  and  the Magistrate improperly exercised his discretion in awarding a sentence  of  fine only.  But the High Court  was  wrong  in awarding rigorous imprisonment as s. 24(1)(b) provided  only for simple imprisonment.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 34 to 36 of 1956. Appeal  by special leave from the judgment and  order  dated July 1, 1955, of the Bombay High Court in Criminal  Revision Applications  Nos.  351 to 353 of 1955 arising  out  of  the judgment  and order dated November 5, 1954, of the Court  of the  Presidency Magistrate 14th Court at Girgaum, Bombay  in Cases Nos. 328 to 330/P of 1954. H.   J. Umrigar and A. G. Ratnaparkhi, for the appellant. M.   S. K. Sastri and R. H. Dhebar, for the respondent. 1958.   March 24.  The following Judgment of the  Court  was delivered by SUBBA  RAO  J.-These appeals by special leave  are  directed against the judgment of the High Court of 252 Judicature  at  Bombay  made  in  three  connected  Criminal Revision   applications  and  raise  the  question  of   the maintainability  of prosecution of a person for  an  offence committed  under  s. 24(1)(b) of the Bombay Sales  Tax  Act, 1946  (Bom.   V  of 1946) (hereinafter referred  to  as  the repealed Act). The  facts  that  give rise to the appeals  may  be  briefly stated:  The  appellant, Sri Kapur Chand  Pokhraj,  was  the proprietor of Messrs.  N. Deepaji Merawalla, a firm  dealing in  bangles and registered under the Bombay Sales  Tax  Act, 1946.  He did not disclose the correct turnover of his sales to  the Sales Tax Department in the three quarterly  returns furnished  by  him to the said Department on  September  30, 1950,  December 31, 1950, and March 31, 1951,  respectively. He maintained double sets of books of accounts and knowingly furnished  false returns for the said three quarters to  the Sales Tax Officer and thereby -committed an offence under s.

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24(1)(b)  of the repealed Act.  Under that Act, sanction  of the  Collector  was a condition precedent for  launching  of prosecution  in  respect of an offence  committed  under  s. 24(1)  of  the said Act.  The said Act was repealed  by  the Bombay  Sales Tax Act, 1952 (Bom.  XXIV of 1952), which  was published  on  October 9, 1952.  On December 11,  1952,  the Bombay  High Court declared the Act of 1952 ultra vires  and the  State  .of  Bombay  preferred  an  appeal  against  the judgment of the Bombay High Court to the Supreme Court.   On December  22,  1952, the State Government, in order  to  get over  the dislocation caused by the Bombay judgment,  issued the  Bombay Sales Tax Ordinance II of 1952, where  under  it was provided that the 1946 Act was to be deemed to have been in existence up to November 1, 1952.  On December 24,  1952, another  Ordinance, Ordinance III of 1952,  was  promulgated extending  the life of the Act of 1946.  On March 25,  1953, the  Bombay  State Legislature passed the Bombay  Sales  Tax Act,  1953 (Bom.  III of 1953), (hereinafter referred to  as the  repealing  Act),  repealing the Act  of  1946  and  the Ordinance  III of 1952.  The material fact to be noticed  is that the Act III of 1953, though it repealed the earlier Act and the Ordinance extending 253 the life of that Act, made provision for an offence  similar to that covered by s. 24(1) of the repealed Act,  prescribed a  similar procedure for prosecuting persons committing  the said  offence and saved the liabilities incurred  under  the repealed  Act.  During the period when the Ordinance III  of 1952   was   in  force,  the  State  Government   issued   a notification  under  s. 3 of that Ordinance  appointing  the Additional  Collector of Bombay to be a Collector under  the said  Ordinance.   On July 4, 1953, i.e., after Act  III  of 1953 came into force, Mr. Joshi, the Additional Collector of Bombay,   granted  sanction  for  the  prosecution  of   the appellant  in respect of the offence committed by him  under s.  24(1)(b)  of  the repealed  Act.   After  obtaining  the sanction, the appellant was prosecuted under s. 24(1)(b)  of the  Bombay  Sales  Tax Act, 1946.   Before  the  Presidency Magistrate the appellant pleaded guilty to the charge.   The learned  Magistrate accepted his plea and convicted him  for the  offence for which he was charged and sentenced  him  to pay  a  fine of Rs. 200, in default to  suffer  one  month’s rigorous  imprisonment.   The State of  Bombay  preferred  a Revision  against  the  said  Order to  the  High  Court  of judicature  at Bombay praying that the sentence  imposed  on the  appellant  be  enhanced  on  the  ground  that  as  the appellant  kept  double sets of accounts  and  intentionally furnished   false  information,  the  interest  of   justice required  that  substantive  and heavy  sentence  should  be imposed  on  him.   Before the  High  Court,  the  appellant pleaded  that by the repeal of the Sales Tax Act, 1946,  the offence,  if any, committed by him was effaced and  that  in any view the prosecution was defective inasmuch as  sanction had  been given by the Additional Collector and not  by  the Collector of Sales Tax.  The contentions did not find favour with the learned Judge of the High Court. In rejecting them, the  learned  Judge enhanced the sentence  passed  upon  the appellant to rigorous imprisonment for a period of one month in  each of the three cases in addition to the fine  already imposed  by  the Magistrate.  He  directed  the  substantive sentence  of  imprisonment  in all the  three  cases  to  be concurrent.  The appellant obtained special leave 254 from  this  Court to prefer the above  appeals  against  the judgment of the High Court.

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The  learned Counsel for the appellant raised before us  the same  contentions  which his  client  unsuccessfully  raised before  the High Court.  We shall now proceed to  deal  with them seriatim. The main argument of the learned Counsel was that the Bombay Sales Tax Act, 1953 (Bom.  III of 1953) in repealing the Act of  1946  did  not save penalties  in  respect  of  offences committed  under that Act and therefore no  prosecution  was maintainable  in respect of an offence committed  under  the Act  of 1946.  A clearer conception of the argument  can  be had by looking at the relevant saving provisions enacted  in Act III of 1953 and also the relevant sections of the Bombay General Clauses Act.  Section 48(2) of the Bombay Sales  Tax Act, 1953 reads: "  Notwithstanding the repeal of the said Act and  the  said entries,  the said repeal shall not affect or be  deemed  to affect- (i)  any  right,  title,  obligation  or  liability  already acquired, accrued or incurred; (ii) any  legal  proceeding  pending  on  the  1st  day   of November, 1952 in respect of any right, title, obligation or liability or anything done or suffered before the Raid date; and any such proceeding shall be continued and disposed  of, as if this Act had not been passed; (iii)the  recovery  of  any tax or penalty  which  may  have become  payable  under  the said Act and  the  said  entries before  the  said date; and all such taxes or  penalties  or arrears thereof shall be assessed, imposed and recovered, so far  as  may be, in accordance with the provisions  of  this Act; ". Section 7 of the Bombay General Clauses Act says: "  Where  this  Act,  or  any  Bombay  Act  made  after  the commencement  of  this Act, repeals any  enactment  hitherto made  or  thereafter to be made, then,  unless  a  different intention appears, the repeal shall not- (a)  revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment 255 so repealed or anything duly done or suffered thereunder; or (c)  affect  any right, privilege, obligation  or  liability acquired,  accrued  or  incurred  under  any  enactment   so repealed; or (d)  affect  any penalty, forfeiture or punishment  incurred in respect of any offence committed against any enactment so repealed; or (e)  affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation,, legal proceeding or remedy  may be instituted, continued or enforced, and any such  penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed." A  comparative study of the aforesaid  provisions  indicates that  while  under s. 7 of the Bombay General  Clauses  Act, there  is  a specific saving of any penalty,  forfeiture  or punishment  incurred  in respect of  any  offence  committed under the enactment repealed, as distinct from civil  rights and liabilities, under s. 48 of Act III of 1953, there is no separate  treatment  of Civil and  Criminal  matters;  while under  the  former provisions legal proceedings  are  saved, under  the  latter provisions legal proceedings  pending  on November   1,  1952,  in  respect  of  rights  acquired   or liabilities  incurred under the repealed Act are saved.   By such  a study of the two provisions, the argument  proceeds,

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it  is clear that the enactment of a specific saving  clause in  the  repealing Act indicates a " different  intention  " excluding  the operation of s. 7 of the General Clauses  Act and  the  omission  under s. 48 of the repealing  Act  of  a clause  similar  to el. (d) of s. 7 of the  General  Clauses Act, demonstrates that the liability saved excludes criminal liability.  In our view the consideration of the  provisions of  s. 7 of the General Clauses Act need not detain us,  for s.  48(2)(i) of the repealing Act affords a complete  answer to  the question raised.  Under that clause, the repeal  did not  affect  any  right, title or  obligation  or  liability already acquired, accrued or I incurred, The words liability 256 incurred " are very general and comprehensive and ordinarily take in both civil and criminal liability.  In Criminal  Law the  term  " liability covers every form  of  punishment  to which  a man subjects himself -by violating the law  of  the land.   There  is no reason why the all  comprehensive  word should not carry its full import but be restricted to  civil liability  alone  ?  The context does not  compel  any  such limitation.   Indeed,  there  is no  conceivable  ground  to impute  to  the Legislature the intention to  wipe  out  the offences committed under the repealed Act, when it expressly retained  the  same offences under the  repealing  Act.   If there was any justification for preserving Civil liabilities incurred  under  the  repealed  Act,  there  was  an   equal justification  to save criminal liabilities  incurred  under that repealed Act.  The fact that s. 7 of the Bombay General Clauses  Act  provided separately in different  clauses  for Criminal  and  Civil  liabilities, while  s.  48(2)  of  the repealing  Act  clubbed them together in one clause  is  not decisive  of the question raised, as, for ought we know,  s. 48  might  be  an  attempt by  the  Legislature  at  precise drafting by omitting unnecessary words and clauses.  Nor the circumstance that a special provision is made under s. 48(2) of the repealing Act -for pending proceedings is  indicative of  any  conscious  departure by the  Legislature  from  the established practice embodied in s. 7 of the General Clauses Act indicating an intention to save only offences under  the repealed  Act  in-respect of which  legal  proceedings  were pending  on  a specified date.  It is more  likely,  as  the learned Judge of the Bombay High Court pointed out, that el. 2  was enacted to obviate the argument that once a  case  is sent up the liability merges in the proceedings launched and has  to be saved specially.  On a fair reading of the  terms of  the saving clause in s. 48(2) of the repealing  Act,  we cannot  give  a restricted meaning to the  words"  liability incurred",  especially when the scheme of the Act  does  not imply that the Legislature had any intention to exclude from the  saving  clause criminal liability  incurred  under  the repealed  Act.   We,  therefore,  hold  that  the  liability incurred           257 i.e.  the  offence  committed, under the  repealed  Act,  is covered  by  the  saving clause embodied in s.  48  of  -the repealing- Act.  In this view it is not necessary to express our view whether, by reason of the saving clause enacted  in s.  48  of the repealing Act, the  Legislature  indicated  a different intention within the meaning of s. 7 of the Bombay General  Clauses  Act  so as to  exclude  its  operation  in construing the provisions of the repealing Act. Even  so, the learned Counsel contended that the  appellant, who committed the offence under the repealed Act, should  be prosecuted only with the previous sanction of the  Collector as provided by that Act, but as the sanction in the  present

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case  was given by the Additional Collector, the  Magistrate had  no jurisdiction to take cognizance of the offence.   To appreciate this argument it would be necessary to notice the provisions relating to sanction in the repealing Act and  in the Acts and Ordinances that preceded it. " BOMBAY SALES TAX ACT, 1946. " Section 24 (1)(b): Whoever-fails,without sufficient cause, to submit any  return  as  required by,  section 10 or know- ingly submits a false return,............................... shall,  in addition to the recovery of any tax that  may  be due  from him be punishable with simple  imprisonment  which may  extend  to six months or with fine  not  exceeding  one thousand  rupees  or with both; and when the  offence  is  a continuing one, with a daily fine not exceeding fifty rupees during the period of the continuance of the offence." Section 24(2): No Court shall take cognizance of any offence under  this Act, or under the rules made thereunder,  except with  the  previous sanction of the Collector and  no  Court inferior  to that of a Magistrate of the Second Class  shall try any such offence." " Section 2(a) : " Collector " means the Collector of  Sales Tax appointed under sub-section (1) of Section 3." " Section 3(1) : For carrying out the purposes of 33 258 this Act, the State Government may appoint any person to  be a  Collector of Sales Tax and such other persons  to  assist him as the State Government thinks fit." ORDINANCE No. II of 1952: Under  this Ordinance, Bombay Act V of 1946 and the  entries relating to the said Act in the third schedule to the Bombay Merged States (Laws) Act, 1950 were deemed to have continued to be in force up to and inclusive of November 1, 1952. ORDINANCE III OF 1952: "Section 36.  Offences and Penalties:  whoever     (b)  fails   without sufficient cause,  to  furnish  any return  or  statement  as required by section 13  or  18  or knowingly furnishes a false return or statement,........... in addition to the recovery of any tax that may be due  from him, be punishable with simple imprisonment which may extend to six months or with fine not exceeding two thousand rupees or with both; and when the offence is a continuing one, with a  daily  fine not exceeding one hundred rupees  during  the period of the continuance of the offence." " Section 37.  Cognizance of offences. (1).  No Court  shall take  cognizance of any offence punishable under section  36 or under any rules made under this Ordinance except with the previous sanction of the Collector and no Court inferior  to that of a Magistrate of the Second Class shall try any  such offence." "  Section 2(6): " Collector " means the Collector of  Sales Tax appointed under section 3." "  Section  3(1):  For carrying out  the  purposes  of  this Ordinance, the State Government may appoint any person to be a  Collector of Sales Tax, and such other persons to  assist him as the State Government thinks fit." BOMBAY SALES TAX ACT, 1953 (Act III of 1953): " Section 36: Whoever- (b)  fails  without sufficient cause, to furnish any  return or statement as required by Section 13 or 18 or 259 knowingly furnishes a false return or statement............ shall,  in addition to the recovery of any tax that  may  be due  from him, be punishable with simple imprisonment  which may  extent  to six months or with fine  not  exceeding  two

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thousand  rupees  or with both; and when the  offence  is  a continuing one, with a daily fine not exceeding one  hundred rupees during the period of the continuance of the offence." "Section  49(2):  Any  appointment,  notification,   notice, order, rule, regulation or form made or issued or deemed  to have been made or issued under the Ordinance hereby repealed shall  continue in force and be deemed to have been made  or issued  under the provisions of this Act. in so far as  such appointment,  notification, notice, order, rule,  regulation or form is not inconsistent with the provision of this  Act, unless it has been already, or until it is superseded by  an appointment,  notification, notice, order, rule,  regulation or form made or issued under this Act." THE BOMBAY SALES TAX (AMENDMENT) ACT, 1956. (BOMBAY ACT NO.  XXXIX OF 1956) Section 3. Amendment to section 3 of Bom.  III of 1953 :  In section  3  of  the  said  Act,  for  sub-section  (1),  the following  sub-section shall be and shall be deemed ever  to have been substituted, namely:- (1)  for  carrying out the purpose of this  Act,  the  State Government may appoint- (a)  a person to be the Collector of Sales Tax, and (b)  one  or  more persons to be  Additional  Collectors  of Sales Tax, and (c)  such other persons to assist the Collector as the State Government thinks fit." NOTIFICATION  ISSUED BY THE STATE GOVERNMENT  UNDER  SECTION (3) OF THE ORDINANCE III OF 1952: "Government of Bombay is pleased to declare the   Additional Collector of Sales Tax, Bombay State, Bombay, as " Collector of  Sales  Tax, Bombay State, Bombay " for purposes  of  the Bombay Sales 260 Tax  (No.  2) Ordinance, 1952 (Bombay Ordinance No.  III  of 1952)."  It  will be seen from the aforesaid provisions  that  under the  Acts  as  well  as  under  the  Ordinances,   knowingly furnishing  a false return or statement is made  an  offence punishable  with simple imprisonment or fine or  with  both. The only difference is that under the Ordinance and the  Act of  1953, the maximum amount of fine is increased  from  Rs. 1,000  to Rs. 2,000.  Under the Ordinance as well  as  under the  Acts, no Court can take cognizance of the said  offence except  with  the previous sanction of the  Collector.   The term  Collector " is defined in similar terms in  the  Ordi- nance  as well as in the Acts, i e., a person  appointed  as ,"Collector  "  by the State Government.   The  notification issued by the State Government under Ordinance 11I of  1952, appointing  the Additional Collector as Collector  of  Sales Tax  must be deemed to have continued to be in  force  under the  Bombay Sales Tax Act, 1953, by reason of s. 49  (2)  of that  Act, as it is common case that no  fresh  notification was  made  under  that Act repealing that  made  under  that Ordinance.   Shortly  stated, the Bombay Act  III  of  1953, introduced  the  same  offence and  provided  for  the  same machinery that its predecessors contained. On  the basis of the aforesaid provisions, the  argument  of the  learned Counsel for the appellant is that as the  State Government  appointed the Additional Collector as  Collector of Sales Tax in exercise of the power conferred on it  under the Ordinance III of 1952 and not under the power  conferred on  it  by  the  repealed Act, the  sanction  given  by  the Additional Collector to prosecute the appellant is  invalid. The  first answer to this contention is that, as  the  State Government had the power to appoint any person including’ an

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Additional  Collector as Collector of Sales Tax  both  under the  repealed Act as well as the Ordinance III of 1952,  the appointment may reasonably be construed to have been made in exercise  of  the relevant power in respect of  the  offence saved  under  the  Ordinance.  The  second  answer  is  more fundamental.   There is an essential distinction between  an offence and the 261 prosecution  for an offence.  The former forms part  of  the substantive  law  and  the latter  of  procedural  law.   An offence is. an aggregate of acts or omissions punishable  by law while prosecution signified the procedure for  obtaining an  adjudication  of  Court  in  respect  of  such  acts  or omissions.   Sanction or prior approval of an  authority  is made  a  condition  precedent  to  prosecute  in  regard  to specified  offences.   Prosecution  without  the   requisite sanction makes the entire proceeding ab initio void.  It  is intended  to be a safeguard against  frivolous  prosecutions and  also to give an opportunity to the authority  concerned to decide in the circumstances of a particular case  whether prosecution  is  necessary.  Sanction to  prosecute  for  an offence is not, therefore, an ingredient of the offence, but it    really   pertains   to   procedure.    In    Maxwell’s Interpretation of Statutes, the following passage appears at page 225: " Although to make a law punish that which, at the time when it  was  done,  was not punishable,  is  contrary  to  sound principle, a law which merely alters the procedure may, with perfect  propriety,  be made applicable to past as  well  as future transactions." In the instant case when the repealing Act did not make  any change either in the offence or in the procedure  prescribed to  prosecute  for  that offence  and  expressly  saved  the offence committed under the repealed Act, the intention  can be   legitimately  imputed  to  the  Legislature  that   the procedure prescribed’ under the new Act should be  followed, even  in  respect of offences committed under  the  repealed Act.   If so, it follows that, as sanction pertains  to  the domain  of procedure, the sanction given by  the  Additional Collector  appointed by the State as Collector of Sales  Tax was valid. Even  so, it was contended that the notification  appointing the  Additional Collector as Collector of Sales  Tax  issued under  Ordinance  No.  11 of 1952 would  not  enure  to  the prosecution  launched under Act III of 1953.  This  argument ignored the express provisions of s. 49 (2) of the said  Act (already extracted supra), which in clear and express  terms laid down 262 that notifications issued or orders made under the  repealed Ordinance would be deemed to have been made or issued  under the provisions of the Act and would continue to be in  force until  superseded  by appropriate  orders  or  notifications under  the  new Act.  It was not suggested  that  any  fresh notification  revoking  that made under  the  Ordinance  was issued under the repealing Act.  If so, it follows that  the notification  issued  under  the  Ordinance  appointing  the Additional Collector as Collector of Sales Tax continued  to be  in force when the said Collector gave sanction  to  pro- secute  the appellant.  In this view it is not necessary  to consider the scope of the Bombay Sales Tax (Amendment)  Act, 1956. Lastly, a strong plea was made for reducing the sentence  of imprisonment given by the High Court to that of fine. It was said that the Magistrate in exercise of his discretion  gave

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the sentence of fine and the High Court was not justified in enhancing  the  same  to  imprisonment  without  giving  any reasons which compelled them to do so.  Reliance was  placed in this context on two decisions of this Court--Dalip  Singh v.  State  of Punjab (1) and Bed Raj v. The State  of  Uttar Pradesh  (2).   In  the  former  case,  the  Sessions  Judge convicted  each of the 7 accused under s. 302, Indian  Penal Code  read  with s. 149, Indian Penal Code.   As  the  fatal injuries could not be attributed to any one of the  accused, he  refrained from passing a sentence of death, but  instead he convicted them to imprisonment for life.  The High Court, without  giving  any reasons, changed their  sentences  from transportation  to  death.   Bose  J.  who  delivered.   the judgment of the Court, in holding that the High Court should not  have  interfered with the discretion exercised  by  the Sessions Judge, made the following observation at page 156: " But the discretion is his and if he gives reasons on which a  judicial mind could properly found, and  appellate  Court should not interfere.  The power to enhance a sentence  from transportation to death should very rarely be exercised  and only for the strongest (1) [1954] S. C. R, 145. (2) [1955] 2 S. C. R. 583. 263 possible  reasons.  It is not enough for an appellate  Court to  say,  or  think, that if left to itself  it  would  have awarded the greater penalty because the discretion does  not belong to the appellate Court but to the trial Judge and the only  ground  on which an appellate Court can  interfere  is that  the discretion has been improperly exercised,  as  for example, where no reasons are given and none can be inferred from  the circumstances of the case, or where the facts  are so gross that no normal Judicial mind would have awarded the lesser penalty." In  the  latter case, the appellant along with  another  was convicted  by the Sessions Judge under s. 304  Indian  Penal Code  and sentenced to three years’  rigorous  imprisonment. On appeal the High Court enhanced the sentence to ten years. In  enhancing  the  sentence, the learned  Judges  gave  the reason that the deceased was unarmed and the attack was made with a knife and it could not be said that the appellant did not  act  in  a cruel or unusual  manner.   This  Court,  in allowing  the appeal on the question of sentence,  made  the following observation at page 588: " A question of a sentence is a matter of discretion and  it is  well  settled  that when discretion  has  been  properly exercised along accepted judicial lines, an appellate  Court should  not interfere to the detriment of an accused  person except  for very strong reasons which must be  disclosed  on the  face of the judgment.................. In a  matter  of enhancement  there  should  not  be  interference  when  the sentence    passed    imposes    substantial     punishment. Interference  is  only  called for  when  it  is  manifestly inadequate." These observations are entitled to great weight.  But it  is impossible  to lay down a hard and fast rule, for each  case must  depend  upon its own facts.  Whether in a  given  case there  was  proper exercise of judicial  discretion  by  the trial Judge depends upon the circumstances of that case.  In the present case, the appellant kept double sets of  account books  and submitted false returns for successive  quarters, omitting  from  the turn-over shown by him  in  the  returns substantial   amounts.    Under  s.  24(1)   of   the   Act, infringement of 264

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the provisions of the Act is made punishable.  The  offences under  that  section  are  of  different  degrees  of  moral turpitude.  They range from a mere infringement of a rule to conscious  and deliberate making of false returns.  For  all the  offences, the section fixes the maximum  punishment  of simple  imprisonment  which may extend to six  months.   The magistrate,  who tries the offenders under that section,  is given  a wide discretion to could the punishment in  such  a way  as  to  make it commensurate with  the  nature  of  the offence  committed.  Though the appellant adopted  a  syste- matic scheme to defraud the State by keeping double sets  of account  books and therefore deserved deterrent  punishment, the  learned  Magistrate, presumably because  the  appellant pleaded  guilty,  without giving any reasons, gave  him  the lenient  punishment of fine of Rs. 200.  It is obvious  that the  sentence should depend upon the gravity of the  offence committed  and  not upon the fact that the  accused  pleaded guilty  or  made  an attempt to defend  the  case.   In  the circumstances  the  High Court was  certainly  justified  in enhancing  the sentence from fine to- imprisonment and  fine and it had given good reasons for doing so.  The High  Court thought and, in our view, rightly that as the appellant  had kept  double sets of account books, it was eminently a  case in which a substantive sentence ought to have been  imposed. The  Magistrate  has  improperly  exercised  his  discretion within  the  meaning of the aforesaid observations  of  this Court and therefore, the High Court was certainly within its right to enhance the sentence. But  the  High  Court  committed a  mistake  in  awarding  a sentence of rigorous imprisonment for a period of one month, which  it is not entitled to do under the provisions  of  s. 24(1)  of  the  Act.   Under  that  section  the  Court  had jurisdiction  only  to  give a maximum  sentence  of  simple imprisonment  extending  to  6 months but had  no  power  to impose  a sentence of rigorous imprisonment.  This  mistake, if  any, should go to the benefit of the appellant, for  the High Court might have imposed a sentence of longer period of simple imprisonment if it had realised that it had, no power to sentence 265 the appellant to rigorous imprisonment.  Be it as it may, as the High Court had no power to impose a sentence of rigorous imprisonment   we   change  the   sentence   from   rigorous imprisonment  to  simple imprisonment for a  period  of  one month in each case.  With this modification the appeals  are dismissed.                               Appeals dismissed.