KAPUR CHAND POKHRAJ versus THE STATE OF BOMBAY

Citation: [1959] 1 S.C.R. 250 · Decided: 24-03-1958 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Dismissed

Judgment (excerpt)

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SUPREME COURT REPORa:'S 
[1959] 
KAPUR CHAND POKHRAJ 
v. 
THE STATE OF BOMBAY 
(B. P. SINHA, 
0
JAFER IMAM and SuBBA RAO, JJ.) 
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statute-If valid for prosecution for offence under repealed statute~ 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-Bo:vibay Sales Tax Act, x946 
(Bom. V of x946), ss. 2, 3 and 24, Bol!ibay Sales Tax Act, I953 
(Bom. III of x953), ss. 2, 3, 36, 37, 48 and 49-Bombay Sales Tax 
Ordinance II I of x952, ss. 2, 3, 3.6 and 37. 
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 
3r, 1951, false returns to the Sales Tax Officer and thereby com-
mitted an offence under s. 24(1)(b) of the Act. Under ti11l Act 
sanction of the Collector was necessary before cognizance of the 
offence could be taken by a Court. The 1946 Act was repealed 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 II of 1952 was promulgated which 
provided that the 1946 Act was to he deemed to have been in 
existence up to November l, 1952. This was followed by Ordi-
nance III 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which repealed both the 1946 Act and Ordinance III of 1952.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 .aid offence and saved liabili-
ties incurred under the 1946 Act. During the period when Ordi-
nance 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 Collecter granted 
sanction for the prosecution of the appellant. 
The appel-
lant 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 prefefred 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 enhanred the 
sentence to rigorous imprisonment for one month in addition to 
the fine already imposed ; 
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S.C;R. 
S~PREME COURT REPORTS 
251 
H.eld, that the offence under s. 24(1)(b) of the 1946 Act was 
covered by the saving clause, in s. 48 of 1953 Act and the appel-
lant 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 I952 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. Jiurther, the notification must be deemed 
to have continued in force under the '!953 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 
shoul@l. 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 s.entence 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. ass. i4(1)(b) 
provided only for simple imprisonment. 
CRIMINAL 
APPELLATE 
JURISDICTION: 
Cri

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