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

WP/5015/2017HC BombayHCBM01051827201709 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 petitioner had filed an application (Exhibit-93) seeking dismissal of the complaint due to the complainant's absence for approximately 15 years. The Magistrate had rejected this application. However, due to an inadvertent error in the operative part of the order dated July 20, 2017, it was mistakenly recorded as 'the present complaint shall stand rejected' instead of 'the present application shall stand rejected'. The Income Tax Authorities filed an application under Section 362 Cr.PC for correction, which the Magistrate allowed after observing that the word 'rejected' pertained to the 'application' and not the 'complaint', and it was a typographical error. This correction was confirmed by the Revisional Court. The High Court found this to be an inadvertent error, supported by the Magistrate's own observation in paragraph 4 of the July 20, 2017 order stating, '...Under the circumstances, I find that, the present application deserves to be disallowed...'. Therefore, the petition was dismissed.

What were the facts?

The petitioner, Thakarchand Bhikchand Punmiya, challenged two orders: one dated September 15, 2017, by the 3rd Additional Chief Judicial Magistrate, Thane, in RCC No. 101 of 1992, and another dated October 11, 2017, by the learned Additional Sessions Judge 05, Thane, in Criminal Revision Application No. 174 of 2017. The petitioner's grievance stemmed from an earlier order dated July 20, 2017, where the Magistrate had rejected an application filed by the petitioner seeking dismissal of the complaint due to the complainant's prolonged absence. The Income Tax Department, the respondent, had opposed this application. An inadvertent error in the operative part of the July 20, 2017 order, stating 'the present complaint shall stand rejected' instead of 'the present application shall stand rejected', led the Income Tax Department to file an application for correction under Section 362 of the Code of Criminal Procedure (Cr.PC).

What were the issues?

1. Whether the learned Magistrate could alter the order dated July 20, 2017, in view of Section 362 of the Code of Criminal Procedure, particularly concerning the alteration of the word 'complaint' in the final order which would change the complexion of the case (question of law). Assessee's Contention: The learned Magistrate could not have altered the order dated July 20, 2017, in view of Section 362 of the Code of Criminal Procedure, as altering the word 'complaint' would change the complexion of the case. Revenue's Contention: No interference is warranted in the impugned order. The Income Tax Department argued that the error in the operative part of the July 20, 2017 order was an inadvertent clerical mistake and sought its correction.

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.5015 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-98 in RCC No.101 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.174 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 – 93) 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 – 93 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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