THAKARCHAND BHIKCHAND PUNMIYA vs. THE CHIEF COMMISSIONER OF INCOME TAX AND ORS

WP/5019/2017HC BombayHCBM01051839201709 January 2018Author: HON'BLE JUSTICE REVATI MOHITE DERE3 pages

AI SummaryDismissed

What did the High Court hold?

The High Court held that no infirmity could be found in the impugned order passed by the learned Magistrate and confirmed by the Revisional Court, warranting interference in writ jurisdiction. The Court observed that the error in the operative part of the order dated July 20, 2017, where the word 'complaint' was inadvertently used instead of 'application', was a clear typographical mistake. This was evident from the Magistrate's own observation in paragraph 4 of the July 20, 2017 order, which stated, '...Under the circumstances, I find that, the present application deserves to be disallowed...'. Therefore, the Magistrate's action in allowing the application for correction under Section 362 Cr.PC to substitute 'application' for 'complaint' was justified as it merely corrected an inadvertent error and did not alter the substance or complexion of the case. The ratio is that Section 362 Cr.PC does not bar the correction of clerical or typographical errors that do not change the fundamental nature of the order.

What were the facts?

The petitioner, Thakarchand Bhikchand Punmiya, filed a writ petition challenging an order dated September 15, 2017, by the 3rd Additional Chief Judicial Magistrate, Thane, and an order dated October 11, 2017, by the Additional Sessions Judge, Thane. The petitioner argued that the Magistrate could not alter a previous order dated July 20, 2017, due to Section 362 of the Code of Criminal Procedure (Cr.PC), as changing the word 'complaint' to 'application' in the operative part of the order would alter the case's complexion. The Income Tax Department opposed the petition, stating no interference was warranted. The Magistrate had initially rejected an application by the petitioner seeking dismissal of the complaint due to the complainant's prolonged absence. However, the operative part of the July 20, 2017 order inadvertently stated 'the present complaint shall stand rejected' instead of 'the present application shall stand rejected'. The Income Tax authorities filed an application for correction, which the Magistrate allowed, substituting 'application' for 'complaint'. This correction was upheld by the Revisional Court.

What were the issues?

1. Whether the learned Magistrate had the power to alter the order dated July 20, 2017, in light of Section 362 of the Code of Criminal Procedure, 1973, by correcting an inadvertent typographical error in the operative part of the order. Assessee's Contention: The petitioner argued that the Magistrate could not alter the order dated July 20, 2017, in view of Section 362 of the Code of Criminal Procedure, as altering the word 'complaint' in the final order would change the complexion of the case. Revenue's Contention: The respondent Income Tax Department opposed the petition, submitting that no interference was warranted in the impugned order.

Which sections of the Income-tax Act were involved?

Section 362

AI-generated summary — verify with the full judgment below

1/3 nsc. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.5019 OF 2017 Thakarchand Bhikchand Punmiya ...Petitioner Versus The Chief Commissioner of Income-Tax, Thane and Ors.

...Respondents Mr.G.A.Tambe, for the Petitioner. Mr.S.V.Walve, for the Respondent No.1 – Income Tax. Ms.R.M.Gadhvi, A.P.P for the Respondent No.3-State.

CORAM : REVATI MOHITE DERE, J.

DATE : 9th JANUARY, 2018 P.C. : 1.

Heard learned counsel for the parties.

By this petition, the petitioner has impugned the order dated 15th September, 2017, passed by the 3rd Additional Chief Judicial Magistrate, Thane, below Exhibit-81 in RCC No.105 of 1992, as well as the order dated 11th October, 2017 passed by the learned Additional Sessions Judge 05, Thane, in Criminal Revision Application No.178 of 2017.

2/3 3. Learned Counsel for the petitioner submits that the learned Magistrate could not have altered the order dated 20th July, 2017, in view of Section 362 of Code of Criminal Procedure. He submitted that altercation of the word 'complaint' in the final order would change the complexion of the case. 4. Learned Counsel for the Respondent No.1-Income Tax opposed the petition. He submitted that no interference is warranted in the impugned order. 5. Perused the papers. It appears that the petitioner had filed an application (Exhibit – 76) and had sought dismissal of the complaint on the ground that the complainant was absent in the said case for about 15 years. The said application i.e. Exhibit – 76 was opposed by the Income Tax Authorities. The learned Magistrate after hearing the parties was pleased to reject the said application. It appears that inadvertently in the operative part of the order dated 20th July, 2017, it is stated that 'the present complaint shall stand rejected, instead of ‘the present application shall stand rejected. Considering the error that had cropped up in the operative part of the order

3/3 dated 20th July, 2017, the Income Tax Authorities filed an application under Section 362 Cr.PC for correction of the said operative part of the order. The learned Magistrate observed that the word rejected was for the 'application' and not for the 'complaint' and that it was inadvertently typed as 'complaint' and accordingly allowed the application and the word ‘application' was substituted in place of the word ‘complaint’ in the operative part of the order dated 20th July, 2017. The said order was confirmed by the Revisional Court. On the face of it, the error is an inadvertent error as is evident from para 4 of the order dated 20th July, 2017, wherein the learned Magistrate has observed as under: “…....Under the circumstances, I find that, the present application deserves to be disallowed.....” 6. No infirmity can be found in the impugned order passed by the learned Magistrate and confirmed by the Revisional Court warranting interference in writ jurisdiction. 7. Accordingly petition is dismissed. REVATI MOHITE DERE, J.

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